Counter-Memorial submitted by the Government of the Kingdom of Denmark

COUNTER-MEMORlALSUBMITTEDBYTH.E

GOVERNmNT OFTHEKINGDOMOF

DENMARK
VederalRepublic of Germany/Denmark)

INTRODUCTION

1. This Counter-Mernorial is subrnitted to the International Court of
Justiceby the Govemment of the Kingdom of Denmark in pursuance of an
Order made on Ebiarch 1967 by the Judge discharging the duties of President
of the International Court of Justice under Article 12 of the RuIes of Court.
For further particulan regarding the submission of the present dispute to the

Court derence is made to paragraphs 1-5of the Memorial filed on 21 August
1967 bythe Govemment of the Federal Republic of Germany.
2.The dispute has arisen because the Federal Republic has thought fit to
lay clairn to areas of the continental sheif beneath the North Sea which lie
rimrerto thecoast ofDenmark than they do to that of the Federal Republic
and whjch, naturally, are considered by Denmark to form part of hercon-
tinental shelf. Thedispute has come to the Court because the Federal Republic,
ivhile inwking the recognition by the Geneva Conference in the Continental
Shelf Convention of the rights of a coastal State over the subrnarine areas
adjacentto its Coast, has declined to acknowledge the right of Denmark to
delimit her continental shelf in accordance with the principles recognized as
appLicableby that same Conference in that same Convention. And now the
cru% of ~liedispute Lieforethe Court is that the Federnl Republic denlands
an appurtimnt of the continentalshelf beneath the Nurth Sanaccording
to the Federal Gowrnnient's own notion uf whnt isdueto theFederal Rcpub-

lic ex neqztuelLWIIIw),hereas Deiimark asks for th^dcIimitalioof lier con-
ti~ientolshcll in aucurdanco with lgenerallyrecognized principleand rules
of ioteriiatinnal Iaiv.
5.The Meninrial contains nurncrous r~i~rcacesto writers. which rcfcrcnccs
have oniyken spaiwly cominented upon in this Culinter-Menlorial. Several
quataticm. hmwr, appea.roirtof context.Anncx 15 ill~istrnlea nuinber
of instanms whcrc quotritions seÿmto be incoinplete.

4. For the canvmicnct: 01th(:Court,a.ndhaving regard toArticle 42 of the
Rdes of Court, tlis present Counter-Mcmorial is divided into thc samt:
main parts as the Memorial subrnitted on 21 August 1967 by the Agent the
Governent of the Federal Republic of Gerrnany.
In framing the individual Chapters of these main parts, two principles have
ken followed.On the one hand the present Pleading, beiaCounter-Memo-
rial, wks to cornpb with the sccond paragraphof Article 42 of the Rules of
Court, whicb prwribes that a Counter-Mernorial shall contain, among
other thin& an admiuion or denial of the facts stated in the Memorial, and
obwwations mncerning the statementof law in the said Mernorial.On the
other hand the preseat Pleading takes account of the fact that it affords the
kt opprtunity to place before the Court the views of the Kingdom of
Dmk cm thematter in dispute. This results from Article 2 of the Special158 NORTH SEA CONTINENTAL SHELF

Agreement of 2 February 1967 between the Kingdorn of Denmark and the
Federal Republic of Gerrnany, wherein, pursuant to the provisions of Article 37
of the Rules of Court, the Parties have agreed that, without prejudice to
anyquestion of burden of proof, a Memorial shaii first be submitted to the
Court by the Federal Republic of Germany, and then a Counter-Memorial
by the Kingdom of Denmark.

5. Consequently, the present Counter-Memorial contains:
in Part 1an exposition of the relevant facts and of the history of the dispute,
supplementing and correcting the exposition given in the Memorial of the
German Federal Government ;
in Part II the legal considerations which the Government of the Kingdom of
Denmark considers to be of importance to the present case, together with
its observations on the legal position taken by the Gemn Federal Govern-
ment in Part IIof the Memorial;
in Part III the submissions to the Court regarding the principles and rules of
international law applicable tothedeIimitation as between the Partiesof the
areas of the continental shelf in the North Sea which appertain to each of
them;
in Part IV the annexes, with English translations where the text is neither in
English nor in French. PART 1. FACTS AND HISTORY OF THE DISPUTE

CHAPTER I

GEOLOGY AND GEOGRAPHY

6.The description givenof the North Sea in paragraphs 7-8 of the Memorial
is, from a strictly geographical point of view, no doubt correct. The legal con-

clusions drawn from it aiready at this stage are, however, unjustified.
7. The Court willfind as Annex 7to this Counter-Mernorial a Memorandum
givinga summary of exploration activitieas weil as certain additional geolo-
gicalfacts concerning thearea under dispute, including such generally admitted
conclusions as may be drawn from scientific knowledge and practical expe-
rience as to the probability of the existence of mineral oil or natural gas in
different parts of the area.
As appears from this Memorandum, the most promising area is situated
just to the north of the shelf boundary established according to the principle
of equidistance.
The Danish concessionaire has acted upon the knowledge acquired by
scientificand practical experience and confirmed by geophysisurvey w hich
started in 1963.
The first drillings undertaken in the Danish continental shelf area started
in August 1966and were resumed in August 1967.They were carried out in
exactly that part of the shelf area which presented the most promising pros-
pects at locations specified on the chart shown in Annex 7. The Danish con-
essionaire was the first to undertake drilling in the area, and the preliminary

results of the drillings indicate the existence of natural resources which may
be commercially exploitable.
It will be seen from the chart that the positions where drillings been
undertaken and where the presence of oil- and gas-bearing layers has been
ascertained are within the area which the Federal Republic of Germany now
suggestsis to be allotted to her (Memorifig21, p. 85,supra).
Under the terms of the concession it expiresin 1972unless the concessionaire
has found naturaI resources and started production prior thereto. Therefore
the concessionaire-immediately after the concession in 1963 wasextended to
comprise the Danish continental shelf-sbrted the necessary surveys of the
Danish North Sea continental shelf. These surveys were extended and inten-
sified during the following years. The Danish Government-which has based
the delimitation of Danish shelf boundaries on the principle of equidistance
as laid down in Article 6 of the Geneva Convention-has not felt bound to
put any restraint on the development of natural resources of the greatest
importance to the economy of a small country.
8. Furthermore, it 'should be noted that aIthough Danish geological re-
search in the North Sea was not started until 1963,as early as 1952Denmark
clearly and on an international plane expressed views identical to those on
which her attitude in the present dispute isbased. Denmark has subsequently

consistently claimed and administered her continental sinlaccordance with
those views.
9. In order to provide the Court with a convenient geographical view of the160 NORTH SEA CONTINENTALSHELF

North Sea the map enclosed on the inside back cover of this Counter-Memo-
rial, among other things, shows those continentai shelf boundaries on which
agreement has aiready been achieved-in dl casesonthe basisof equidistance-
as weii as the boundaries of the North Sea under the North Sea Fisheries

Convention of 1882.
10. With regard to paragraph 9 of the Mernorial the folIowing facts are
submitted :
The angle of the German North Sea coast is approximately 100'.
The Federal Republic of Germany has not, so far, established straight
baselines along her coast. The boundary on the basis of equidistance suggested

on charts annexed to the present Counter-Mernorial takes into account the
relevant base-points along the German shore and coastal islands. There is no
dispute between the Parties on this aspect of the delimitation.
The Island of Heligoland is of no significance to the present dispute, since
it exercisesno material-if any-influence on the equidistance line. COUNTER-MEMORIAL OF DENMARK

CHAPTER II

DANISH ATTlTUDE TO THE CONTINENTAL SHELF QUESTION

11. Denmark took an initiative jn continental shelfmatters at an early stage.
In 1948 a committee was set up by the Ministry of Foreign Affairs with the
object of exarnining the legal, political, economic and scientific pprblems
relating to the continental shelf.
12. As a result of its work, the commitfee mada recommendation in early
1952 with an attached sketch of the delimitation of the Danish continental
shelf in the North Sea and the Baltic. The recommendation forrned the basis
of the commrnts of the Danish Government on the International Law Com-
mission's draft of the Continental Shelf Convention. A memorandum, with
the sketch attached was sent to the United Nations in May 1952. It was re-
printed without the sketch in the InternationaLaw Corn~nissionYearbook of
1953, Volume II, pages 245-247, and is submitted as Annex 8. In the memo-
randum the Danish Government said, among other things:

"The Danish authorities have prepared theenclosed sketch of a division
of the shelf contiguous to the Danish coasts facing the North Sea and the
Baltic and the waters between them. This sketcisprimarily based on the
boundaries fixed on 3 September 1921 between Danish and German
territorial waters east and west of Jutland, and the boundary fixed by
agreement of 30January 1932between Danish and Swedish waters in the
Sound and the prolongation of these lines cornbined with the median line,
where the latter is applicable, and otherwise based on planes forming the
locus of points closer to Denmark than to any other country involved.
The sketch might serve as an illustration of a divisionunder concrete
conditions calling for special solution; the principles outlined may also
be applicable to analogous cases in other geographical areas."

13. During the Ceneva Conference Denmark moved two arnendments to
the draft of the Convention, both relating exclusivelyto the question of scien-
tific freedom, one of which was adopted, At the eighteenth plenary meeting,
held on 26 April 1958, Denmark voted for al1the articles of the Convention.
On 29 April 1958the Convention was signed by Denmark.
14.In March 1963the Danish Foreign Minister submitted to the Parliament
a motion for a resolution on Denmark's ratification of the Convention. The
motion further asked for consent of the Parliament that Danish sovereignty
for the purposes of exploration and exploitation of natural resources should
be exercised over that part of the continental shelf which belongs to the King-
dom of Denmark according to the Convention, In May 1963the resolution
was unanirnously adopted and the Danish ratification procedure was com-
pleted in June 1963. Furthermore, in pursuance of the Parliament resolution
a Royal Decree on the exercise of Danish sovereignrights over the continental

shelfwas issued on 7 June 1963.
15. The Statutes governing the right to utilize Denmark's subsoil are con-
tained in the Prospecting for and Recovery of Raw Materials in the Kingdom
of Denmark's Subsoil Act, No. 181, 8 May 1950,and, as far as Greenland is
concerned, Decree No. 153, 27 ApriI 1935,and Act No. 166, 12 May 1965.
The sovereignty over the shelf as far as expIoration and exploitation of natural162 NORTH SEA CONTINENTAL SHELF
resources are concerned has been established by the above-mentioned Royal
Decree of June 1963.On the question of delimitation the Decree provided as

follows:
"The boundary of the continental shelf in relation to foreign States
whose coasts are opposite the coasts of the Kingdom of Denmark or
which are adjacent to Denmark shall be determined inaccordance with
Article 6 of the Convention. Accordingly, in the absence of any special
agreement the boundary shall be the rnedian Iine, every point of which
is equidistant from the nearest points of the baselines from which the
breadth of the territorial sea of each State is measured."

The Decree comprises the continental shelf around Denmark proper as well
as around Greenland and the Faroe Islands. On 10 July 1963the Government
of the Federal Republic of Germany was notified of the Decree by Denmark.
The 1963Decree makes the 1935 Decree and the 1950 Act applicable to the
Danish shelf area as regards the granting of concessions.
16.In 1963 the concession for exploration and exploitation of oil and gas
in Denmark's underground granted to the Danish concessionaire, the A. P.
M~lier Companies, was extended to comprise the Danish continental shelf,
but with exclusion of the shelf surrounding Greenland and the Faroe Islands,
since the concession as such does not comprise GreenIand and the Faroe
Islands.

17. During the time which has passed sincethe ratification of the Convention
on the Continental Shelf Denmark has, as mentioned also in the Memorial
(paras. 20-22) made agreements with Norway, Great Britain, and the Nether-
lands on the shelf boundaries in the North Sea, and also a Treaty with the
Federal Republic of Germany conceming the boundary in the North Sea near
the Coast. In addition reference may be made to the shelf boundary in the
Baltic Sea in relation to the Federal Republic of Germany. In a Protocol
attached to the aforementioned Treaty with the FederaI Republic of Germany
of 9 June 1965 the second paragraph runs as follows:

"With respect to the continental shelf adjacent to the coasts of the
Baltic Sea which are opposite each other, it is agreed that the boundary
shall be the rnedian line. Accordingly, both Contracting Parties declare
that they will raise no basic objections to the other Contracting Party's
delimiting its part of the continental shelf of the Baltic Sea on the basis
of the median line." COUNTER-MEMORIAL OF DENMARK 163

CHAPTER III

ATTITUDEOF THE FEDERALREPUBLIC OF GERhlANY
IN RESPECT OF THE CONTINENTAL SHELF
18. At the 1958Geneva Conference the Federal Republic of Gerrnany sub-
mitted a memorandum to the Fourth Cornmittee (the Continental Shelf Com-
mittee) advocating free utilization for everyone of the natural resources of the

continental shelf, reserving onIy certain controliing rights to the coastal State
closest to the installations in question.
19. The Federal Republic's proposa1 received no support, however, from
the other States participating in the Conference, the preponderant view being
that an exclirsiveright to the naturel resources of the shelf was vesindthe
coastal State.
20. The position of the Federal Republic at the various votes takenduring
the Conference presents the following picture:

(a) at the vote taken in the Fourth Cornmittee (the Continental Shelf Com-
mittee) on Article 6 (at that time Art. 72) the Federal Republic voted in
favour thereof(Ofici Ralcords, Vol. VI,p.98).
After the vote the representative of the Federal Republic said: "that,
in view of the inexact nature of the outer limit of the continental shelf as
defined byArticle 67 (the later Art. l), his delegation would have preferred
the adoption of the Venezuelan amendment l.When that amendment was
rejected, the delegation of the Federal Republic of Germany had accepted
the viewsof the majority ofthe Committee, subject to an interpretation of
the words 'special circumstances'as meaning that any exceptionaldelimita-
tion of territorial waters would affect the delimitation of the continental

shelf." (Ibid., para. 38.)
(b) At theninth plenarymeeting on 22 April 1958 Article 6(at that time still
Art.72) was adopted. The Federal Republic of Germany did not vote
against the article and it seems reasonable to assume that shewas not
among those abstaining.
(c) At the eighteenth pIenary meeting on 26 April 1958the Convention as a
whole was adopted. The Federal Republic of Gerrnany voted against for
reasons not connected with Article 6, a matter that will be further dealt
with below (ibid., Vol. 11,p. 57).
Having thus voted against theadoption of the Convention on the Continental
Sheif the Federal Republic of Germany nevertheless signed the Convention

on 30 October 1958-which was the last day but one on which it was open for
signature-making a reservation only in respect of Article 5 on fishing rights.
21. In the period 1957-1963extensive German scientific explorations were
carried out in the eastern part of the North Sea including the southern part

Under thisamendment Article6 wouldread as follows:
"1. Where a continental shelfis adjacent to the territories of two or more
Stateswhose coastsare oppositeto each other, the boundaryof the continental
shelf appertaining touch States shall be determinedby agreementbetween
them or by other meansrecognizedin internationallaw.
2. Where the same continental shelf is adjacento the territories two
adjacent States,the boundary of the continentalshelf shbeldeterminedin
the rnannerprescribedinparagraph 1 of this Article."164 NORTH SEA CONTINENTAL SHELF

of the Danish shelf area. In a Note of 18 March 1964the Danish Government
protested officiallyagainst German seismic, gravimetric and rnagnetic explora-
tions of the Danish shelf area having been carried out after the notification to
the German authorities of the Danish Royal Decree of 7 June 1963. The
German explorations in theDanish shelf area were not repeated after this, but
there is little doubt that a thorough picture of potentialities in the German as
weli as in the Danish shelf areas had already been obtained.
In early 1963 Oberbergamt Clausthal Zellerfeld, which is the competent
authority in this fieldin the Federai Republic of Germany, grantea temporary
concession to the German North Sea Syndicate to perform driilings outside
the territorial sea limits.

22. About the turn of the year 1963-1964,it was reported in the press that
an American oil Companyhad announced its plans to carry out drilling off the
German territorial sea. It would have been no more than a natural reaction
on the part of the Federal Republic of Germany to take adequate measures
to protect its national interests, and this, apparently was what prompted it to
issue the Government Proclamation of 20 January 1964.

23. Only fragments of the text of this Proclamation appear in the Memorial.
In view of the relevance of this document the full text has been reproduced as
Annex 10.As willbe seen, the Government of the Federal Republic of Germany
Statesin this Proclamation:
{a) that "the Federal Government will shortly submit to the Legislature an
Accession Billon this Convention" with a view to German ratification.

(6) that it deems exploration and exploitation of the seabed and subsoil to be
the sovereign right of the Federal Rebublic, and that this right is based
on "the development of general international law as expressed in recent
State practice and, in particular, in the signing of the GenevaConvention
on the Continental Shelf".
24. No Accession Bill was, however, presented to the Legislature by the
Federal Government. On 15 May 1964a Bill was submitted with a view only
to establishing a statute relating to the activity in the German shelf area.
But in the Exposédes Motifs of the Bill (Annçx 11)the Federal Government

stated that the statute was to be "the municipal supplement to the effectsof the
Proclamation in the field of international law". It will further be seen from the
text that once again the Federal Government of Germany acknowledges the
Geneva Convention as an expression of customary international law.
25. The Parliament ("Bundestag") of the Federal Republic of Germany re-
sponded favourably to the Govemment Bill, adopting it unanimously at the
third reading on24 June 1964. In its report as wellas in its recommendation, the

parliamentary committee concerned advocated an early German ratification of
the Geneva Convention, and thisrecommendation wasendorsed by Parliament.
26. Why, then, was the ratification of the Convention never carried out by
the Federal Republic of Germany? The Govemment announced it in a Note
Verbale of 26 August 1963 to the Netherlands Govemment and aavocated itin
its Proclamation, and Parliament recornrnended it. But when the Netherlands-
German andthe Danish-German agreements on delimitation of the continental
shelf in theNorth Seanearthe CoastwereplacedbeforeParliamentinDecember

1964and October 1965respectively,no reference whatsoever wasmade to rati-
fying the Geneva Convention. COUNTER-MEMORIALOF DENMARK

CHAPTER IV

THE NEGOTIATIONS BETWEEN THE PARTIES

Section 1. BilateralNegotiations

27. It is only natural that the delimitation question has been the object of
thorough negotiation between the Parties-be it officialtalks or informal dis-

cussions. The Mernorial rnight conveythe impression that onIya forma1presen-
tation of officia1viewpoints took place, and that "the other Party" wasintransi-
gent jn upholding the Continental Sheif Convention and the equidistance
principle. But the fact is that a series of negotiations were held. Between
Denmark and the Federal Republic of Germany there were formal talks on
two occasions, viz.during two days in October 1964 and during two days in
March 1965.
28. The Danish-German negotiations resulted only in a Treaty concerning
the delimitation of the continental shelf of the North Sea near the Coast and
an annexed Protocol in which the Parties, inter aliaa ,greed to a unilateral
delimitation of the continental shelf in the Baltic Sea based on the median line.
The Treaty was signed on 9 June 1965by the Foreign Ministers of the two

countries.
29. There remained the question of the North Sea outside the partial bound-
ary established through the above-mentioned Treaty. The two meetings of del-
egations in October 1964and March 1965had provided a very useful presenta-
tion of viewpoints but also shown how difficult would be a reconciliation be-
tween the positions of the two countries. At the end of the bilateral round of
negotiations the Danish delegation was inforrned of a German intention of
caliing tripartite negotiations between the Federal Republic, Denmark and the
Netherlands. However, a German initiative was never taken. On various oc-

casions during the year1965 theDanish Embassy in Bonn invited the Gerrnan
Foreign Ministry to present in some detail the proposals for a solution which
they would wish to have discussed at a negotiation. No such indications were
ever forthcoming.
30. On 8December 1965 the German Foreim Ministrv in an Aide-Mémoire
to the Danish and Netherlands Ernbassiesproiosed that-the Foreign Ministers
ofthethreecountries take uothe rnatter on the occasion of arninisterialmeeting
in Paris later in ~ecember.'T'hefuil text of the Aide-Mémoire wasas follow;

"The Government of the Federal Republic of Germany proposes con-
tinuing negotiations on the delimitation of the continental shelf areas
appertaining to the two States in the North Sea, the first phase of which
was concluded by the signing of the German-Danish Treaty on 9 June
1965.In the opinion of theFederal Republic of Gerrnany theIegalopinions
of the two States on the principle on which to base the continental shelf
delimitations which are still in dispute after the negotiations held so far,
should be excIuded in further discussions.
However, the Federal Governrnent is also prepared to subrnit the said
legal issue to an arbitration tribunal. Should the Royal Danish Govern-
ment prefer this alternative, the Federal Governent would propose that
the Royal Netherlands Government should likewisetake part in negotia-166 NORTH SEA CONTINENTAL SHELF

tions on the details of the proceedings before an arbitration tribunal in
line with section 3 of the Final Protocol to the German-Danish Arbitra-
tion and Amicable SettlementAgreementdated 2 June 1926,whichassumes
such a procedure wherever the practical consequences of a dispute between
the parties to the agreementtranscend the concreteissue at hand."

In other words: as an understanding on legal terrns was not foreseeable,
legal principles should be disregarded during the continued negotiations, but
the Aide-Memoire failed to provide any suggestions on the basis on which a
solution was to be sought.
31. The meeting of the three Foreign Ministers was brief and inconclusive,
but gave a vague indication that on the German side the idea was enter-
tained that joint utilization might be the solution. The Foreign Ministers
agreed that new discussions should be held either bilaterally or between al1
three countries.

SectionLI,TrilateralNegotiations

32. The first tripartite negotiations took place in The Hague in February
1966.Second and third rounds of tripartite taiks wereheId in Bonn and Copen-
hagen in May and August 1966respectively.

33. At the meeting in nie Hague it soon became clear that the Danish and
Netherlands delegations were feeling no inclination to leave their legal stand-
point: that the Geneva Convention should be applied. From the German side
no proposals as to another therne of negotiations werepresented. Upon request
of the German delegation it was agreed that a new tnlateral meeting should
be held in Bonn in May, at which, it was stated,a concrete German proposa1
on the division of the shelf could be expected.
34. Meeting in Bonn in May 1966, the three delegations entered into a dis-
cussion on whether joint utilization could be the basis for negotiatiowhich
disregarded the legal positions, as maintained by the German delegation.
nie two other delégationsupheld their position that even a possible solution
along these lines would have to be based on a fixatioof the lines of delimita-
tion. The German delegation did not present any concrete proposal as an-

nounced at The Hague meeting. The German delegation concluded that no
further negotiations were possible, and the discussions then concentrated on
the question of the procedural steps to be taken. These discussionswere final-
ized at the third trilateral meeting in Copenhagen in August 1966.

SectionIII: Conclusions

35, Adrnittedly al1during the negotiations the Danish delegation upheld its

position that theGenevaConvention wasa codification ofinternational custom-
arylawandthat it would not be possible to make a departurefrom thisConven-
tion, whichhad been ratified by Denmark and signedby the Federal Republic of
Gerrnany. The Federal Republic had furthermore endorsed the Convention in
its Government Proclamation of 20 January 1964, which had been approved
by the Legislative AssernbIy through the adoption of the Bill referred to in
paragraph 24 above, which bewme the German Act for the Provisional Deter-
mination of Rights over the Continental Shelf of 25 July 1964.It is likewise
correct that the FederaI Republic of Gerrnany during the negotiations indicated
that other principles or criteria mighlx applied, namely: COUNTER-MEMORIAL OF DENMARK 167

division according toa parity principle,
division inproportion to the length of each country'scoast facingthe North Sea,
division into sectorunder amultilateral arrangement of the central part of the
North Sea,
joint utilization.

36. While the German delegation at no point during themany meetings pre-
sented any concrete proposal nor any elaboration of these suggestions, the
Danish side at a11stages maintained its legal position based on Article 6 of
the Geneva Convention and the principle of equidistance, but continued dis-
cussions on the substance until both sides agreed that ali possibilities of agree-
ment had been exhausted. COUNTER-MEMORIAL OF DENMARK

PART II. THE LAW

CHAPTER 1

THE QUESTION SUBMITïED TO THE COURT

37. The question which, under the terrns of the Compromis (Special Agree-
ment), the Court is called upon to decide is:
"what principles and rules of international Iaw are applicable to the
delirnitation as between the Parties of the areas of the continental shelf
in the North Sea which appertain to each of them beyond the partial

boundary deterrnined by the above-mentioned (i.e., Danish-German)
Convention of 9 June 1965". ,
The Federal Republic, in its subrnissions and in Part II of the Mernorial,
asks the Court in eiTectto declare that the only applicabIe principle or rule of
law is an alleged principle that each coastal State is entitled ta just and
equitable share; and that neither the equidistance method nor any other
rnethod is a fit and proper method of delimitation in any circurnstances, unless
it is established by agreement, arbitration or otherwise that the particular
method will "achieve ajust and equitable apportionment ...among the States
concerned" '.(Italics added.)

38. The daim thus forrnulated by the Federal Republic seemstothe Govern-
ment of Denmark to be nothing less than a request to the Court to lay down
that, as between Denrnark and the FederaI Republic, the delimitation of the
continental shelf in the North Sea should be settled ex aequo et bono. Without
a framework of legal criteria to determine what is "just and equitable", the
concept of a "just and equitable apportionment" lacks any legal content.
Indeed, as the very terrns of the Compromis show, it was preciselyin orderto
obtain the Court's directions regarding the applicable framework of legal
criteria that Denmark and the Federal Republic have submitted the dispute
to the Court. Accordingly, the claim formulated by the Federal Republic
appears to Denmark not to fa11within the terms of the question put to the
Court in the Compromis.

39. In any event, the thesis put forward by the Federal Republic reflects a
concept of the coastal State's rights in the continental shelf which has no basis
either in the terms of the Compromis or in the applicable rules of international
law.
40. The Compromis does not request the Court to decide what principles
and rules of international law should govern the sharing out between Denmark
and the Federal Republic of areas of the continental shelf in the North Sea.
It requests the Court to decide the principIes and rules applicable to the delimi-

tation as between Denrnark and the Federal Republic of the areos of the con-
tinentalshelfirz the North Sea whichappertairo each of them beyond thepartial
boi~ndaryalready fiwed by the 1965 treaty. In short, the question put to the
Court in the Compromis concerns the principles and rules applicable for com-
pleting the delimitation of the boundary running between the areas of con-
tinental shelf which appertain to each of two adjacent coastal States.

l Mernorial,p.91, supra.170 NORTH SEA CONTINENTAL SHELF

41. The manner in which the question for the Court's decision is framed in
the Compromisalso corresponds to the way in which the question of delimita-
tion presents itself in State practice, in the proposals of the International Law
Commission and in the provisions of the Geneva Convention of 1958 on the
Continental Shelf.

42. Al1the pre-1958texts of Proclamations or Decrees given inparagraph 31
(p.31, supra) of the Mernorial viewthe question asone of boundary delimitation
in accordancewith equitable princjples.The proposals of the International Law
Commission in both paragraphs of Article 72 of the draft submitted by it to
the General Assembly were also framed entirely as rules for delii~iitingthe
bimdai-iexof the areas of contiaenroJsheq apprt~ining IOroasfa1Stafes (Year-
book, 1956,Vol. II, p. 300). ArticIe 6 of the Geneva Convention on the Con-
tinental Shelf,which reproducesthe Commission's textsatmost word for word,
is sirnilarly couched entirely in terms of the delimitation of continental shelf
boundaries. Thus, the text of Article 6 reads:

"1. Where the same continental sheif is adjacent to the territories of
two or more States whose coasts are opposite each other, the barrndaryof
the continental shelf apperraining to such States shall be determined by
agreement between them. In the absence of agreement, and unless another
boundary line is justified by special circumstances, the boundary is the
mediun line, every point of which is equidistant from the nearest points
of the baselines from which the breadth of the territorial sea of each State

is measured.
2. Where the same continental shelf is adjacent to the territories of two
adjacent States, the boundary of the continental shew shall be determined
by agreement between thern. In the absence of agreement, and unless
another boundary line is justified by special circumstances, the bollndary
shallbe determined by application of the principle of equidistance from the
nearest points of the baselinesfrom which the breadth of the territorial sea
of each State is measured.
3. In delimiting the boundaries of the continental shelf, any lines which
are drawn in accordance with the principles set out in paragraphs 1
and 2 of this article should be definedwith referenceto charts and geogra-
phical features as they exist at a particular date, and reference should
be made to fixed permanent identifiable points on the land." (Italics

added.)
43. The same is true of the State practice after the 1958Geneva Conference,
and especially that relating to the North Sea itself, as clearly appears from the
terms of the unilateral acts and bilateral agreementscited in Chapter II of Part
1 of the Mernorial.Thus, the Norwegian Proclamation and Decree, of 1963,
speak of Nonvay's submarine areas having a baundary midway between Nor-
way and other countries. The Danish Decree and Note Verbale, both also of

1963,echoing the language of the Convention, speak in terms of bouiidary de-
limitation. The Federal Republic's own Proclamation of 20 January 1964(see
Annex 10) speaks of the delimitation of the Gerrnan part of the continental
sheIf in relation to the parts of the continental shelf of foreign States. The
United Kingdom's Continental Shelf (Designation of Areas) Order of the same
year refers to certain areas as subject to the exercise of its continental shelf
rights "pendingagreementwith other Powersonthe bounduriesof thecontinental
shelfappeutaining to the UnitedKingdom" (italicsadded). As to the Netherlands,
its Note Verbale of 21 June 1963 (Annex 2 A of the Mernorial) notified the
Federal Republic that the part of the continental shelf of the North Sea over COUNTER-MEMORIAL OF DENMARK 171
which theNetherlandsexercisedsovereignty in conformity with the Convention

"isdelimited to the east by the equidistance line beginning at the point
where the Thalweg in the mouth of the Ems reaches the territorial waters"
(italics added).
44. Particularly striking is the fact that al1the bilateral agreements hitherto
concluded between North Sea Powers are expressed as delimitations of bound-
aries between the parts of the continental shelf appertaining to the respective
countries, not as agreements for sharing out the continental shelf. Thus, the
United Kingdom-Norway Agreement of 10 March 1965 (Annex 5 of the Me-
rnorial) has a prearnble which proclaims that the two States-
"Desiring to establish the boundary between the respectivepartsof the
continentalshelf:

Have agreed as foliows" (italicsadded).
And then the operative clause of Article 1 of the Agreement reads-
"The dividing Iinebetween that part of the ContinentalSkelf whichap-
perrains tothe UtzitedKingdomof Great Britain and Northem Ireland and
that part whichapperfainsto the Kingdom of Norway shall be based ...",
etc. (italics added).

The same forms of prearnble and operativeclauseappear also in the Nether-
lands-UnitedKingdom Agreement of 6 October 1965(Annex 9 of the Mernorial).
Similarly, the Denmark-United Kingdom Agreement of 3 March 1966(Annex
12 of the Memorial) has a preamble in the terrns that the two States-
"Having decided to establish theirommon boundary between the parts
ofthe continental shelf over which the United Kingdom of Great Britain
and Northern Ireland and the Kingdorn of Denrnark respectively exercise
sovereign rights for the purpose of the exploration and exploitation of the
natural resources of the Continental Shelf."
And the operative clause of ArticIe 1 of-the Agreement then takes the same

form as in the United Kingdorn-Norwayand the Netherlands-United Kingdom
Agreements. The Denrnark-NorwayAgreement of 8 December 1965(Annex 11
A of the Memorial) has a preamble and operative cIause which, if the wording
is slightly different, are inspired by precisely the same concept of the purpose
and eflect of the Agreement.
45. The Treaties of the Federal Republic itself with Denmark of 9 June 1965
(Annex 6 A of the Memorial) and with the NetherIands of 1 December 1964
(Annex 3 A of the Memorial) for the delimitation of the continental shelf
near the Coastare equally expressed in terms of the partial delimitation of the
botrnrlnryoJthecontinentalshelfaa'jace~tfo theferritoriesof theStates concerned.
Moreover, even the Joint Minutes and the Protocol (Annexes 4 A and 7 A
of the Memorial) accompanying those Treaties and reserving the position of
the Parties with regard to the further course of the boundary recognized that
the question at issue was the determination of the commonboundarybetween
the respective Parties. Tme, the delegation of the Federal Republic in the
Joint Minutes accornpanying the Netherlands Treaty announced that the
Federal Government was-

"seeking to bring abouta conference of States adjacent to the North Sea
with a view to arriving at an appropriate division of the continental shelf
situated in the middle of the NorthSea".
But it referred tadivision in accordance with the first sentencesof paragrephs
1 and 2 of Article 6 of the Geneva Convention which speak expressly of the172 NORTH SEA CONT~NENTAL SHELF

determination of the boundary of the continental shelf appertaining to the
States concerned. Nor did the Federal Government pursue the idea of a con-
ference. On the contrary, in identic Aide-Mémoiresof 25 May 1966addressed
simultaneously to the Danisli and Netherlands Governments concerning their

Agreement for the delimitation of their respective parts of the North Sea, the
Federal Republic contented itself with underlining that the arrangement made
in that Agreement-
"cannot haveany effecton the question of the delimitation of the German-
Netherlands or the German-Danish parts of the Continental SheKin the
North Sea". (Italics added.)

Furthermore, in its two identic Aide-Mémoiresof 12July 1966,addressed by
the Embassy of the Federal Republic to the United Kingdom Government
with reference to the conclusion of the United Kingdom-Netherlands and the
United Kingdom-Denmark Agreements for the delimitation of the continental
shelf, the Federal Government reserved its position expressly in terms of the
delimitation of its boundaries with the Netherlands and Denmark (Annexes
10A and 13A of the Memorial):

"the Federal Government wishes to point out to the British Government
that rhefinalsettlement offhequestion of theIateraldelimitationof thecon-
tinentalsheyin the North Sea betweenthe Federal Republic of Germany,
the Kingdom of Denmark, and the Kingdom of the Netherlands is still
outstanding. The Federal Government would moreover bring the Aide-
Mémoireof 25 May 1966, a copy of which is attached, to the attention
of the British Government and wouid add that the arrangement made in

the aforementioned Agreement cannot prejudice thequestionofthedelitni-
tation of the coniinenta1shelfbetween the Federal Republicof Germarzyand
the Netherlands (Denmark) inthe eastern part of the North Sea" (italics
added).
46. Lastly, it is noteworthy thal in the Protocol of 9June 1965on the deiimi-
tation of the continental shelf in the BaItic Sea the Federal Republic together
with Denmark again dealt with the question purely and simply as one of the

delimitation ofboundaries,not of the sharingout of areas between the littoral
States of that sea:
"With respect to the conthenta1 shelf adjacent to the coasts of the Baltic
Sea whichare opposite each other, it is agrced that the boundaryshall be
the median iine. Accordingly, both Contracting Parties declare they will
raiseno basic objections to the other Contracting Party's deliniitirrgits

part of the continental shelfof the Baltic Sca on the basis of the median
line." (Italics added.) (SeeAnnex 7 A of the Memorial.)
Reference is also made to paragraph 104 below regarding the Belgian Bill
on the continental shelf.

47. Accordingly, the practice of States-in their unilateralacts, their bilateral
agreements and in the Geneva Convention on the Continental Shelf-affords
no support whatever for the conclusion which the Federal Republic seeks to
draw from it in paragraph 38 of its Memorial (p.36, supra):
"Where the sarne continental shelf is adjacent to the territories of
several States. each -~ the~e States is entitled to a iust and eaiiitableslrare
ofthat continentalshelf,irrespectiveofthenrcrhoduiedfor rheieterrnination

of the boundaries between theStates concerned."(Itatics added.)
On the contrary, that conclusion is in direct contradiction both with the COUNTER-MEMORIAL OF DENMARK 173
existing practice of a large number of States and with the rules adopted in the

Geneva Convention on the Continental Shelf.
48. Nor is the Federal Republic's thesis made any more compatible with
State practice or with the Geneva Convention by framing it in the truncated
form in which it appears in the FederaI Government's first submission:

"The delimitation of the continental shelf between the Parties in the
North Sea is governed by the principle that each coastal State is entitled
to a just and equitable share '." (Italics added.)
49. This proposition starts frorn the inadmissible basis of sharing out the
continental shelfiike a cake instead of from the basis of determining, as between
opposite or adjacent States, where the boundary is to be drawn as between the

territory appertaining to each State. When the Federal Rebuplic Statesin para-
graph 30 of the Memorial (p.30, supra) that-
"if, by virtue of their geographic position, twa or more coastal States
can claim that a continental shelf 'appertains'to each of them, the necessity
arises of apportioning that cornmon continental shelf between them",

thisis a manifest rnisrepresentation of the legal situation under positive inter-
national law. In the first place, this statement confuses the geological concept
of the continental shelf with the entirely different legal concept of sovereign
rights of a State over the continental shelf. There are, perhaps, reasons for
considering a continental shelf as a "unit" from the geological point of view.
There is, however, no more reason to regard that geological unit as a legal
entity than there is to consider the "continent of Europe" or the "low coun-
tries" as such. From the legal point of view the continental sheif, like land,
sea and air, is primarily "space" wherein activities take place and objects are
found, and space is apriori susceptible to any limitation or division. Secondly,
the mere fact that two or more Stateseach lay a daim (or even canlay a claim)
to the same space does not make that space cornmanspace to be divided be-

tween them. Indeed the normal legal situation in respect of, for instance, a
disputed territory is not that the territory is divided but that the better clairn
prevails. Nor have any of the other North Sea States sought to treat the con-
tinental shelf beneath that sea as legally a unity. On the contrary, every single
one of thern-with the exception of the Federal Republic of Germany-has
demonstrably regarded its claim as limited to that part of the continental shelf
every point of which is nearer to its Coastthan to that of any other State.
Equally, the reference in paragraph 35 of the Memorial to the use of the
waters of international rivers is entirely beside the point. The régimefor the
utilization of the waters of international rivers is a quite different question
which does not concern the delimitation of boundaries.

50. No doubt, when the determination of the boundaries of the areas of
continental shelf appertaining to each coastal State has been made, the result
may be spoken of as constituting an "apportionment" of the continental shelf
among the States concerned or as a determination of their "shares". But there
is a fundamental difference between a principle which starts from the basis
that the continental shelf is the cornrnon property of the littoral States, each
of whom is entitled to an "equitable and just share" of the common property,
and one which starts from the basis that each littoral State is entitled to the

areas which appertain to its territory and that the boundaries between fhese
appurtenatrtareas are to be delirnited on equitable principles. If these principles

l Mernorial, p. 91,supra.174 NORTH SEA CONTINENTAL SHELF
rnay not always have been clearly distinguished by some writers, there can be
no doubt that it is the latter principle which is found in State practice and ex-

pressed in the Geneva Convention, not the principle formulated in the Federal
Government's first submission.
51. Furthermore, the Federal Republic's subrnission,that the delirnitation
of the continental shelf in the North Sea as betweenDenmark and the Federal
Republic should be governed by the principle that each coastal State is entitled
to a just and equitable share, is one which by its very nature cannot give an
adequate answer to the question put to the Court in the Compromis. In the
first place,a delirnitation of the boundary as betweenDenmark and the Federai
Republic would not by itseIf determine the total area appertaining to either

or both of them, since the total area of each would be dependent upon their
other boundary lines with third States not parties to the present dispute. In
the second place, and consequentially, the question whether such a delirnita-
tion would produce a "just and equitable share" for Denmark and the Federal
Republic ivouldnecessarilyalso be dependent on the delimitationof their boun-
daries wirh third Stares. Thus, the alleged principle formulated by the Federal
Republic simply cannot constitute a principle or rule of international law ap-
plicable to the delirnitation of the continental shelf boundary as between the
Parties tothe Compromis.

52. If there were such a principle or rule of positive international law, it
would follow logicallythat the delimitation of the continental shelfof each and
every North Sea coastal State could be effected only through a rnultilateral
agreement concluded between al1of them. The Federal Republic did, indeed,
ai one stage in the negotiations speak of'an intention to convene a rnulti-
lateral "conference of States adjacent to the North Sea witha view to arriving
at an appropriate division of the continentai sheif situated in the rniddle of the
North Sea" (Joint Minutes of 4 August 1964,Annex 4 A of the Mernorial).
But it made no effort to carry the matter further. No doubt, this was because
the Federal Government soon came to realize that not only Denmark but al1
the other States concerned would automatically demand the application of
Article 6 of the Geneva Convention and that the only resuit of such a con-

ference must be the delirnitation of the North Sea conthenta1 shelf in accor-
dance with the equidistance principle. At any rate, it never adverted to the
idea of a rnultilateral conference again.
53. Now, however, the Federal Governrnent shifts its ground and demands
that the boundary betweenDenmark and itself should be determined bilaterally
in isolation from the other North Sea States but in such a way as to provide
the Federal Republic with a share of the total continental shew beneath rhe
NorthSea that it considers ''justand equitable". In short, the Federal Republic
now seeks to put the burden of praviding for itself what it considers a just and

equitableshare of the North Sea shelf not on al1but on one or at most two of
the North Sea States. The very nature of this demand, in the viewof Denmark
is incompatible with the existence of the supposed principle which the Federal
Republic invokes.
54. On this point, there isacertain consistency in the position taken up by
the Federal Republic. Prior to the Geneva Convention it advocated that the
continental shelf outside territorial waters should be regarded as common to
al1States and should be exploited in the interests of all. That concept of the

continental shelf was, however, in total conflict with the practice of States and
was compietely and finally rejected at the Geneva Conference of 1958. The
principle formulated in the Federal Republic's first submission seerns to be COUNTER-MEMORIAL OF DENMARK 175
essentially a relic of that very "community" concept of the continental shelf
which the Federal Government has itself now abandoned. Be that as it may, .
the principle is certainly in confiict with the practice of States and with the

concept of the continental shelf which was adopted in the Geneva Convention
and animates the provisions of Article 6 concerning the delimitation of boun-
daries of the continental shelf.
55. If it is necessary to look for the generaI concept underlying the modern
law regarding the delimitation of continental sheIfboundaries, this is that esch
State has ipsojure sovereign and exclusiverights of exploration and exploita-
tion over the areas of continental shelf adjacent to its Coast and that, in the
case of two States fronting upon the same continental shelf, the areas which
are to be considered as appertaining to one or to the other are to be defimited
on equitable principles. However, State practice and the Geneva Convention
have translated this general concept into the more concrete criteria for the

delimitation of continental shelf boundaries which are examined in the next
Chapters of this Counter-Memorial. In the viewof the Danish Government, it
is in these more concrete criteria that the answer to the question putto the
Court in the Compromis has to be found. NORTH SEA CONTINENTAL SHELF

CHAPTER II

THE PRINCIPLE THAT A DELIMITATION OF A MARITIME AREA
IN ACCORDANCE WITH GENERALLY RECOGNlZED RULES OF
INTERNATIONAL LAW IS PRIMA FACE VALID AND OPPOSABLE
TO OTHER STATES

56. The FederaI Republic, as pointed out in the previous Chapter, asks the
Court in its subrnissions to recognize only one aliegedprinciple of law as gov-
erning the delimitation of the continental shelf betweenthe Parties in theNorth
Sea, namely the principle that "each coastal Stateis entitled to ajust and equi-

table share". By way of clearing the ground for its alleged principle of law,
however, the Federal Republic also asks the Court expressly to deny the status
of a rule of customary law to the "equidistance" principIe-the principle ap-
plied by Denmark and the Netherlands as weii as by other North Sea States in
the delimitation of their respective continental shelf boundaries. The Federal
Republic's second submission reads:
"The rnethod of determining boundaries of the continental shelf in
such a way that everypoint of the boundaryisequidistantfromthe nearest
points of the baselines from which the breadth of the territorial sea of

each State is measured (equidistance method), is not a rule of customary
international law and is therefore not applicable as such between the
Partiesl."
This submission has to be read in the light of the Federal Republic's discus-
sion of the equidistance line in Chapter II of Part II of the Memorial where,
after dealing with the genesis of the equidistance method and its introduction
into Article6 of the Geneva Convention on the Continental Shelf, the Federal
Government asserts :

"Thus Article 6 is not a codification of alreadv existine. international
law, but it isthe outcome of an effort to develop théexistinglegal situation,
withits dernand foran eauitable solutionby theestablishment of a methad
which it was assumed would, under normal geographical conditions, lead
to an equitable and just apportionment of the continental shelf between
the States concerned. Article 6 rnust be interpreted in this sense, with the
conseqaence that an equidistance boundarymay not be imposed upona Srare
whichIrasnot accededtu the Convenrion,so long as it has not been proved
that it would be the best method of apportioning the continental shelf be-
tween the adjacent States in a just and equitable manner, having regard to
the special geographical situation of the individual ca2."(Italics added.)

57. The Federal Government's contentions regarding the status of the equi-
distance rnethod are believed by Denrnark to be based on a misconception no
less fundamental than that which underlies its first submission.In the present
instance the fundamental misconception concerns the position of the Parties in
relation to the principles and rules of law expressed in the Geneva Convention.
58.TheCourt itself,in itsiudgment in the Fisheriescase(I.C.J. Reports 1951,

Memorial,p. 91,supra. '
Ibid., para. 53, p. 57, lupia. COUNTER-MEMORIAL OF DENMARK 177
p. 116)has stated authoritatively the position of a coastal State with regard to
the delimitation of sea areas (at p. 132):

"The delirnitation of sea areas has always an international aspect; it
cannot be dependent merely upon the will ofthe coastal State as expressed
in its municipal law. Although it is true that rhe act of deiirnitation is
riecessarily a unilateral act, because only the coastal State is cornpetent
to undertake it, the validifyof the delimitarion wirh regard to other States
clependsuponinternational law." (Italics added.)
The Court did not in that passage Saythat the validity of a delimitation by a
coastal State vis-à-vis another State depends on the wiil of rhat orher State.

It said that the validity of the delimitation with regard to other States depends
upon international law.
59. The situation in the present case is that, exercising the competence
which they have under their respective systems of municipal law, the Danish
and Netherlands Governments, by unilateral acts and by bilateral agreements
concluded both between themselves and separately with other North Sea
coastal States, have delimited the boundaries of the areas which they believe
properly to appertain to their respective coasts under the principles and rules
of delimitation generally recognized by States. In doing so they have sought
to base their delimitations directly on the principles and rules adopted by a
very large number of States at the Geneva Conference of 1958and ernbodied

in Article 6 of the Geneva Convention on the Continental Shelf. In short,
Denmark and the Netherlands having delimited their continental shelf boun-
daries specificallyon the basis of generally recognized principlesand rules of
law, these delimitations are prima facie not contrary to international law and
are valid with regard to other States. AccordingIy, if the Federal Republic
considers that the delimitations are invalid, the onus is on it to show why
Denmark or the Netherlands should not be entitled to apply the generally
recognized principles and rules of delimitation in delimiting their respective
continental shelfboundaries. In the present case it is nota question of Denmark
or the Netherlands seeking to impose a principle or rule upon the Federal
Republic; it is rather a question of the Federal Republic's seekingto prevent
Denmark and the Netherlands from applying in the delimitation of their con-
tinental shelf boundaries the principles and rules of international law generally

recognized by States. Neither Denrnark nor the Netherlands has entered into
any international engagement or otherwise placed itselfunder any international
obligation vis-à-vis the Federal Republic which might preclude either State
from delimiting its maritime areas in accordance with the pnerally recognized
principles and rules of international law. NORTH SEA CONTINENTAL SHELF

CHAPTER III

THE STATUS OF THE PRINCIPLES EMBODIED IN ARTICLE 6 OR
THE CONVENTION ON THE CONTINENTAL SHELF AS GENERAL
RULES OF LAW

60. The Federal Republic's principal contention in Chapters I and II of
Part II of the Memorial appears tobethat, as betweenthe Parties to the present
case, delimitation on the basis of equidistance is not to be regarded as a prin-
ciple of law but rnerelyas onofseveralpossiblemethods of delimitation which
may come under consideration in aiming at an "equitable and just apportion-
ment". This contention, which seeks to deprive the "equidistance" principle
of ali legalforce for the purposes of the present case, conflictswith the general
recognition of the equidistance principle asa legal ruleby States as well as
with the attitude adopted towards that principle by the Federal Republic it-
self otherwise than in the case of the particular boundaries now in dispute be-
fore the Court.

61. In the State practice prior to the Geneva Conference of 1958 the ten-
dency adrnittedly was to refer in general terms to the delimitation of continental
shelf boundaries on "equitable principles" without mention of the "equidis-
tance" principle in particular. But the concept oadelimitation on "equitable
principles", as already mentioned in Chapter 1 of this Part, was afterwards
converted first through the work of the International Law Commission and
then through the Geneva Conference of 1958intothe rules set out in Article 6
of the Geneva Convention on the Continental Shelf, which accept the equidis-
tance principleas a rule of law. In addition, as is shown in paragraphs 84-90
below, the equidistance principle adopted in Article 6 of the Geneva Conven-
tion as applicable to the delimitation of the continental shelf wasprinciple
which had already received wide recognition in the practice of States in con-
nection with the delimitation of other forrns of both maritimand fresh-water
boundaries. Moreover, sincethen no lessthan 37 States have ratified the Geneva
Convention and a number of States have already applied the rules contained
in Article 6 in their practice, Finally, the Federal Republic itself, although not
yet a Party, has not only pIaced its signature on the Convention but has also

employed the equidistance principle in delimiting its continental shelf boun-
daries with Denrnark and with the Netherlands near the Coast and again in
delimiting its continental shelf boundary with Denrnark in the Baltic.

Section1. TheInternational Law Commission

62. When the International Law Commission first took up the question of

delimitation in 1950it istrue'that, as indicated in paragraph 48 of the Memorial,
"discussions . . . showed..: a great dealof uncertainty regarding the way to
solve the problem of delimitation and regarding any rules which might be ap-
plied". But the suggestion which also seemsto be made in that paragraph that
the Commission viewed the matter as a question of opportionia nconitrion
area of continental shelf is, on the contrary, quite untrue. nie question put
by the Special Rapporteur to the Commission was:
''Comment faudra-(-il délimite Irs plateaux continentaux-le cas
I COUNTER-MEMORIAL OF DENMARK 179
échéant:les zones contiguës-de différentsEtats, au cas où il ya chevau-
chement? l" (Italics added.)

This question, the record shows, had not yet been gone into very deeply by
members of the Commission, and the discussion was of a preliminarycharacter.
Indeed, the State practice up to that date was not regarded by the Commission
as sufficientlyconsistent to establish any customary rule as already in existence
with respect to the continental shelf, and its whole discussion of the nature and
extent of the rights oa coastal State over the continental sheif was still sorne-
what tentative and exploratory. It is therefore scarcelysurprising that the Com-
mission should not at that session have had any very clear ideas about the
criteria for delirniting continental shelf boundaries; or that some members,
such as Amado and Hudson, should have doubted whether there was any
general principleapplicable and should have simply fallen back upon "arbitra-
tion" or "agreement".

63. In 1951the Commissionreverted to theprobIem. The SpecialRapporteur
now proposed that the delimitation of continental shelf boundaries should in
the first place be left to the agreement of the parties but that:
"Faute d'accord, la démarcation entre les plateaux continentaux de
deux Etats voisins sera constituéepar la prolongation de la ligne séparant
les eaux territoriales et la démarcationentre les plateaux continentaux de
deux Etats séparés parla mer sera constituéepar la ligne médianeentre

les deux côtes." (Yearbook, 1951,Vol. II, at p. 102,para. 162(9).)
The discussion that followed was again somewhat confused: various sug-
gestions were made and it is tme that again no majority was obtained for any
general principle of delimitation to deterrnine continental shelf boundaries be-
tween "adjacent" States. The principIe mainly discussed was that of "pro-
longing" the territorial sea boundary. Butmembers of the Commission doubted
whether any generalprinciple had yetbeen established for delimitingthe boun-
dary between the territorial waters of adjacent States. Indeed, in discussing
this problem at its 1950and 1951sessions the Commission was in the difficulty
that it had not yet begun its study of the territorial sea. As a result, in its 1951
Report the Commission could do no more than advocate that the continental
shelf boundary ,between "adjacent" States should be established by "agree-

ment" and, failing agreement, by contpulsory recourse to arbitration ex aequo
et bono. On the other hand, in that sarne report the Commission did express
itself in favour of the "equidistance" principle-in its median line form-for
"opposite" States whose territories are separated by an arm of the sea. It con-
ceded that in these cases the configuration of the Coastmight sometimes give
rise to difficulties in drawing a median line and recornmended that such dif-
ficulties should be referred to arbitration. But it recognized that the boundary
"would generaily coincide with some median line between the two coasts".
64. The 1953session of the Commission was a turning-point in the develop-
ment of the law regarding the delimitation of continental shelf boundaries.
In commentingupon the Commission's 1951 Report, nurnerous governments

and particulariy those of some of the smaller States had raised strong objections
to the proposa1 that disputes concerning the delimitation of continental shelf
boundaries should be settled ex aequo et bono; and these governments had
urged the Commission to forrnulate rules of law as a basis for the settlement
of disputes regarding the delimitation of continental shelf boundaries *.In ad-

Yearbook, 1950,Vol. II,p. 51, para. 124(7).
Ibid. 1,53,Vol. II, pp. 241-269.180 NORTH SEA CONTINENTAL SHELF

dition, at the wish of the Commission, a cornmittee of experts had been con-
vened by the Special Rapporteur shortly before the 1953session to consider
technical questions connected with the delimitation of the territorial sea. This
committee had presented a report l endorsing the use of the "median line" in
the case of "opposite" States and recornrnendingthat the lateral boundary be-
tween the territorial seas of adjacent Statcs should be traced according to the
"principle of equidistance". Furthermore, in doing so, the committee had
stressed the importance of finding"des formules pour tracer les frontières inter-
nationales dans les mers territoriales qui pourraient en mêmetemps servir

pour délimiter lesfrontièresrespectives de 'plateau continental' concernant les
Etats devantles côtes desquelles s'étend ceplateau 2". True, the experts had
conceded that the equidistance method might not always give an equitable
result, and that in such a case a solution by negotiation might be necessary.
But this had not deterred them from coming down firmly in favour of the equi-
distance principle as the generally applicable rule for the continental sheif as
well as for the territorial sea.

65. Accordingly, at the 1953 session the Special Rapporteur submitted a
new draft article (Art. 7 of his draft) providing that:
(1) in the case of opposite States, the boundary should be "the median
line everypoint of which isequidistant from the two opposite coasts" ;
(2) in the case of adjacent States, the boundary "should be drawn ac-
cording to the principle of equidistance from the respective coast-
lines";

(3) disputes regarding the application of these principles should be sub-
mitted to arbitration
Paragraph 3 was eliminated frorn this Article by reason of the inclusion of a
general provision for arbitration applying to al1the articles. As to paragraphs
1 and 2, their essential principle-an equidistance boundary-was accepted
by the Commission. But these paragraphs, were amended so as: (1) to rnake
the application of the equidistance principle subject to any agreement con-
cluded between the States concerned; (2) to allow for cases where "special
circumstances" justify another boundary; and (3) to define more precisely the

"coast" from which the equidistance line should be measured by substituting
"the base-lines from which the width of the territorial sea of each country is
measured".
66. The Federal Republic in paragraph 32 of the Memorial seeks to inter-
pret the proceedingsof the Commission asshowingthat theequidistancemethod
was suggested by the Rapporteur and accepted by the Commission as a si~b-
sidiar rule; and also that the Commission regarded the question essentially
as one of equitable apportionment rather than of determining boundaries. Tn-

deed, in paragraph 50it givesthe impression that the Commission'sacceptance
of the equidistance principIe at the 1953session was very half-hearted. These
interpretations of the Commission's attitude are, however, in plain contra-
diction with the Commission's ownexplanations of its views in paragraphs
81-85 of its report to the General Assembly (Yearbook, 1953, Vol. II, p. 216).
67. The Commission's commentary begins as follows:

"in thematter of thedelinrifationof theboltndariesof the conrinelitashelf
the Commission was in the position to derive some guidance from pro-

Cf.Annexes 12 and 12 A.
Yearbook, 1953,Vol. II, p. 79.
Ibid.Vol. 1,p. 106. COUNTER-MEMORIAL OF DENMARK 181

posals made by the cornmittee of experts on the delimitation of territorial
waters. .." (Italics added.)
And throughout the rernaining paragraphs the commentary speaks, not of
apportionment, but of the delimitation of boundaries. Then, in paragraph 82,
the Commission expressly designates the "principle of equidistance" as the
"general rule" and as the "major principle":

"Having regard to the conclusions of the committee of experts referred
to above, the Commission now felt in the position to formulate a general
rule, based on the principle of equidistance, applicable to the boundaries
of the continental sheif both of adjacent States and of States whose coasts
are opposite to each other. The rule thus proposed is subject to such
rnodij5cationsas rnay be agreed upon by the parties. Moreover, while in
the case of both kinds of boundaries the rule of equidistance is the generul
rule, it is subject to modijîcation in cases in which another boundary line
is justified by special circumstances, As in the case of the boundaries of
coastal waters, provision must be made for departures necessitared by any
excepfional configuration of the Coast, as well as the presence of islands
or of navigable channels. To that extent the mle adopted partakes of some
elasticity. In viewof the general arbitration clau... no special provision
was considered necessaryfor submitting any resulting disputes to arbitra-
tion. Such arbitration, while expected to take into account the special
circumstances calling for modiJication of the major principle of equidis-
tance, is not contemplated as arbitration ex aequo et bono. That major
principlemust coitstituie the basis of rhearbitraiion, conceived as sertlement
on the basis of law, subject to reasonable modifications necessitated by the

special circumstances of the case." (Italics added.)
In the light ofhat paragraph in the Commission's report, it seems to Den-
mark quite rnisleading to suggest that it accepted the "equidistance principle"
either half-heartedly or merely as a purely "subsidiary" rule,
68. When the Commission adopted the equidistance principle in 1953 for
the continental shelfithad stillnot begunits study ofthe régimeof the territorial

sea. However, like the committee of experts, it recognized that the delimitation
of the territorial sea and the continental shelf should be govemed by the same
principles. Paragraph 83 of the Commission's 1953report thus records:
"Without prejudice to the element of elasticity implied in article 7,
the Commission wasof the opinion that, where the same continental shelf
is contiguous to the territories of two adjacent States, the delirnitation of
the continental shelf betu~eenthern should be carried out in accordance
with the same principles as govern the delimitation of the territorial waters
between the two States in question."

Conformably with this opinion, when the Commission did come to deal
with the régime ofthe territorial sea at its 1954and 1955sessions, it adopted
the equidistance principle as the general rule both for opposite and for "ad-
jacent" States. As in the case of the continental shelf, it made the application
of the principlesubject to any agreement reached betweenthe States concerned
and made allowance for "special circumstances". But both for "opposite" and
"adjacent" States the general rule which it proposed was a boundary deter-
mined by application of the principle of equidistance from the respective base-
lines of the States concerned.Tn doing so, it recalled the opinion of the com-
mittee of experts and underlined that it was following the same mcthod of
delirnitation for the territorial sea as for the continental shelf. (See Arts. 15182 NORTH SEA CON~NENTAL SHELF

and 16of the Commission's draft articles for 1954on the Régimeof the Terri-
torial Sea,Yearbook, 1954,Vol. XI[p,. 157-158,reproduced without matenal
change as Arts. 14and 15of its 1955draft, Yearbook, 1955,Vol. II, p. 38,)

69. At its 1956session the Commission completedits work on the law of the
sea, re-examining the texts of ail its articles. In the meantime a number of
governments had submitted comrnents on the Commission's drafts. Neither in

the case of the territorial sea nor of the continental shelf did any of these
governments oppose the adoption of the equidistance principIe as the general
rule for delimiting the boundary both as between opposite States and as be-
tween adjacent States, should they not agree upon the boundary. Only three
States made comments on the delimitation proposals, and one of these, Yugo-
slavia, did so for the purpose of advocating the strengthening of the equidis-
tance rule by omitting the words "in the absence d agreement between those
States, or unless another boundary line is justified by special circumstances"
(Yearbook, 1956, Vol. II, p. 100). Norway's comment sought only to call at-
tention to the problem of delirniting the boundary of the territorial sea in
cases where the States concerned claim territorial seas of different breadths.
Having declaredher support of the "rnedian line" principle, she suggested that
the problem might be solved by formulating the rule for the temtorial sea
negatively:"in the absence of special agreement, no State is entitled to extend
the boundary of its territorial sea beyond the rnedian line" (ibid., p. 69). This
suggestion, although not followed up by the Commission, in fact formed the
basis of the solution afterwards arrived at by the Geneva Conference. (See
Chapter IV, para. 123,of this Part.)

70. The third State, the United Kingdom, had no criticism to make of the
Commission's proposals for the delimitation of the territorial sea and conti-
nental shelfboundaries in thecase ofadjacentStates. Its comments weredirected
at the rules proposed for "opposite" States in Articles 14 and 7 of the Com-
mission's draft, which provided that, in the absence of agreement and unless

another boundary is justified by special circumstances, "the bomdary is the
ïnedianlineeverypoint of wlaichiseqltidistan...",etc. (italics added). ln sub-
stance, the United Kingdom proposed that instead of stating "the boundary
is the median line" the texts should read: "the boundary ...is usually deter-
mined, unless another boundary line is justified by special circumstances, by
the opplicori ofnrheprinciple ofthe medianliïte, everypoint of which isequi-
distant.. .",etc. (italicsadded). This proposa1it explained asfollows(Yearbook,
1956, Vol. II, pp. 85 and 87):

"The application of an exact median line, which is a matter of con-
siderable technical cornplexity, would in many instances be open to the
objections that the geographical configuration of the coast made it in-
equitable, and that the base lines (i.e., the low-water mark of the coast)
were liable to physical change in the course of time. (Italics added.)
In the experience of the United Kingdom Government, the most satis-
factory course willusually be to apply fheprinciplofthernedianline t:at
is an approximate or simplified median line based as closely as circum-
stances allow on an exact median line and drawn on a specific chart of
specific date." (Italicsin the original.)

After a brief discussion,the Commission concluded that the existingwording
of the text already met the situation sufficientlyon this point. COUNTER-MEMORIA LF DENMARK 183

71. Initsfinalrevision the Commission slightly modified the wording of the
provisions concerning the territorial sea and continental shelf boundaries of
"opposite" States so as to specify that, in the first instance, they should be
determined by agreement. But after weighing the comrnents of governments it
reafirned, without any hesitation and almost without discussion, its support
for the principle of equidistance as the general rule of delimitation in the ab-
sence of agreement both in the case of "opposite States" and in that of "ad-
jacent States".

72. Throughout the period during which the codification and progressive
development of the law of the sea was under consideration by the International
Law Commission the whole doctrine of the coastal State's rights overthe con-
tinental shelf was still in course of formation. The unilateral claims which had
been made by individual States varied in their nature and extent; and many
coastal States, including aIl the Parties to the present dispute, had not yet
promulgated any claim, although Denrnark had already indicated her concep-
tion of her continental shelfboundaries in her reply to the Commission in 1952
(see para. 73,below). The work of the Commission both helped to consolidate

the doctrine in international Iaw and to clarify its contentThis it did no less
in regard to the delimitation of boundaries between States on the continental
shelf than it didinregard to the nature and extent of the legal rights of coastal
States over the continental sheif. The provisions drafted by the Commission
regarding the delimitation of boundaries were part and parcel of its consolida-
tion and clarification of the continental shelf doctrine. Thus, just as the work
of the Commission and the contribution to that work made by Governments
were important factors in developing a consensus as to the acceptability of the
doctrine and its nature and extent, so also were they important factors in de-
veloping a consensus as to the acceptability of the equidistance principle as the
general rule for the delimitation of continental shelf boundaries.

73. The Danish Government participated in the work of the Internationat
Law Commission by comrnenting upon the Commission's proposals as and
when requested by the Secretary-General. On the question of delimitation it
expressed its support for the median line as earIy as 13 May 1952when com-
mentingin a Note Verbale of that dateupon the draft articles on the continental
shelf prepared by the Commission in 1951.Moreover, it attached to that Note

Verbale a sketch map showing its conception of Denmark's continental shelf
boundaries andexplained the sketch map as follows:
"Having regard to the basic principles of the draft in connexion with
the above cornments, the Danish authorities have prepared the enclosed
sketch of a division af the shelf contiguous to the Danish coasts facing
the North Sea and the Baltic and the waters between them. This sketch

is primarily based on the boundaries fixed on 3 September 1921 between
Danish and German territorial waters east and west of Jutland, and the
boundary fixed by agreement of 30 January 1932 between Danish and
Swedishwaters in the Sound and the prolongation of these lines combined
with the median line, where the latter is applicable, and otherwise based
on planesforming the locus of points closer to Denmark than to any other
country involved. The sketch might serve as an illustration of a division
under concrete conditions calling for special solution; the principles out-
lined may also be applicable to analogous cases in other geographical
areasl."

l Yearbook, 1953, Vol. II, p. 246 and Annex 8.184 NORïH SEA CONTINENTALSHELF

Thelineshown on this rough sketch map as representingtheDanish-German
continental shelf boundary, as the Court can see from Annex 9, corresponds in
al1itsessentialswith the line shown on figure2 (p. 27,supra) of the Memorial as
the boundary resulting from astrict application of the equidistance line.

74. The Federal Republic was not among the States invited to comment
upon the Commission's proposals and did not, therefore, participate in any
way in its work. On the other hand, the proceedings of the International Law
Commission were published by the United Nations and the Federal Republic
can hardiy fail to have known of thern and to have followed the growth of the
consensus among States regarding both the continental shelf and the equi-
distance principle. True, the Danish sketch map was not reproduced in the
Commission's report or Ye~rbook.But the Note Verbale was printed both in
the Report and in the Yearbookand the map was obtainable from the Secre-

tariat of the United Nations. Moreover, publicity wasgiven to the sketch map
in the Danish Press.

Section II.The 1958GenevaConference onthe Law of the Ses

75. At the Geneva Conferenceof 1958the International Law Commission's
draft articles formed the basis of the work of the Conference. In the Fourth
Committee, the Committee concerned with the continental shelf, the main
focus of interest was the nature and extent of the right to be attributed to
coastal States. On thisquestion the Federal Republicsubmitted a memorandum
opposing "the whole conception" of the rules proposed by the Commission
and advocating a system which would preserve the character of the continental

shelf as part of the high seas (Oficial Records, Vol. VI, pp. 1, 71 and 125).
This memorandum attracted very little notice at the Conference, which con-
centrated its attention on the proposals of the Commission. Apparently
recognizing that it was swimming against an overwhelming current, the
Federal Republic participated fully in the discussion of the Commission's
draft articles.

76. If the main focus of interest at the Conference was the nature and extent
of the coastal State's rights, there was also, as paragraph 52 of the Memorial
indicates, some discussion and revision of the text of Article 72 of the Com-
mission's draft concerning the delimitation of continental shelf boundaries.
The Federal Republic in that paragraph summarizes the proceedings at the
Conference as follows (p.56, supra):

"Some attempts were made to replace the Rexiblesystem contained in
Article72 by more rigid rules. But al1amendments proposed in this direc-
tion met with overwhelming opposition both in the Fourth (Continental
Shelf) Committee (8-9 April 1958) and in the Plenary Session (22 April
1958), and were rejected.
The proposa1 of the Yugoslav delegate, that the equidistance method
should be declared determinant, without reservations, for the apportion-

ment of the continental shelf, was rejected by the Plenary Session of the
Conference by 45 votes to 5 (with 11 abstentions). A very large rnajority
of the States was not prepared to make the equidistance method a solely
applicable rule. Rather did the Conference recognize very clearly that
the equidistance methodwas suitable for the drawingof boundaries only
undercertaincircumsfances."(Ttalicsadded.) This summary, if in large measure true, gives a somewhat misleading im-
pression as to the outcorne ofthe debate. If a Yugoslav proposa1to delete the
reference to special circumstances and to leave the equidistance principle
standing alone was rejected by the Conference, so also was a Venezuelanpro-
posa1to delete the referenceto the equidistanceprinciple and to leavethe whole

matter to the agreement of the States concerned, What the Conference in fact
did was to endorse the text proposed by the International Law Commission,
subject only to minor revisions. Under this text, in the absence of an agreement,
rheequidistanceprincipie is laid down as thegeneralruleunlessanother bound-
aryIine isjustified by special circumstances.

77. The Federal Republic, it is interesting to note, ultimately voted with the
majority and in favour of the Commission's text, as revised in discussion
(Oficial Records, Vol. VI, p. 98, para. 38). In an "explanation of vote" the
delegate of the Federal Republic stated:

"in view of the inexact nature ofthe outer limit of the continentalshelfas
defined by article 67, his delegation would have preferred the adoption of
the Venezuelan amendment. When that amendment was rejected, the dele-
gation of the Federal Republic of Germany had accepted the views of the
majority of the Committee, subject to an interpretation of the words
'special circumstances'as meaning that any exceptional delimitation of
territorial waters would affect the delimitation of the continental shelf."
(Italics added.)

This "explanation of vote" is illuminating in two respects. First, the Wderal
Republic's delegation voted for the Venezuelanamendment not because of any
doubts as to the rnerits of the equidistance principle but becauseof the inexact
defnition of the outer iimitof the continentalshelf which had been adopted by
the Conference. Secondly,the delegation's caveat as to its understanding of the
words "special circurnstances" related only to any "excepfionaldelimitafionof
territorial waters".(Italics added.) That caveat made no reference at al1to any
implications to be drawn from the lengths of coastlines orto any special con-
siderations affectingthe "apportioning" of "common areas".

78. No particular significance can be attached to the fact, underlined in
paragraph 52 of the Memorial, that the Yugoslav proposal to make the equi-
distance principle the sole mle was rejected in the plenary meeting of the Con-

ference by 47 votes to 5 (with 11abstentions). The provisions proposed by the
Commission and contained in Article 6 of the Convention do not, however,
make the equidistance principle the sole criterion. They make it the general
?le unless another boundary is justified by special circumstances. More signi-
ficanceis, therefore, to be attached to the fact that in that plenary meeting the
text (Art. 72) containing these provisions was finally adopted by 63 votes
to none with only 2 abstentions (Oficial Records, Vol. II, p. 15).

79. It is true that, when at the eighteenth plenary meeting the Conference
voted upon the adoption of the Convention as a whole, the Federal Republic
cast its vote against the text of the Convention; forthe Convention wasadopted
by 57 votes to 3with 8 abstentions, and one of the three negative votes wasthat
of the Federal Repubtic. But each of the three States rejecting the Convention
explained its vote and itdoes not seem that any of thern was rnotivated by op-
position to Article 6. Japan said that she had voted against the Convention
because no reservations were admitted to Articles 67 and 68 (now Arts. 1 and186 NORTH SEA CON~NENTAL SHELF
2) and because Article 74 (compulsory arbitration) had been rejected by the
Conference. Belgiwn and the Federal Republic explained that they had voted
against the Convention because they objected to the critenon of exploitability

in Article 67(now Art. 1)and equallycould not support the Conventionwithout
Article 74.Thus, at the final vote not a singlevoice was lifted againstArticle 6.
Moreover, if for other reasons the Federal Republic did on 26 April 1958cast
its vote against the Convention, its rejection of the Convention was short-lived
because on 30 Octoher of the same year it put its signature to the text.
80. In paragraph 52 of the Mernorial, however, emphasis is also given by
the Federal Republic to the fact thatArticle 12,paragraph 1,of the Convention

allows any State to make reservations to alI the articles of the Convention
other than Articles 1-3, and so permits reservations to Articl6.This shows,
saysthe Federal Republic, that "the substance of Article 6was neither regarded
as part of customary international law nor accorded any sort of fundamental
significance". The conclusion thus drawn by the Federal Republic from the
reservations clause in Article 12 seems much too sweeping for the foUowing
reasons.
81.A wide freedom to formulate reservations is normaUy permitted in

general multilateral treaties, and that even in the case of codifying conventions
largely concemed with the reformulation of the existing law. But this is only
for the purpose of facilitatingthe maximum number of acceptances of the Con-
vention by allowing States having special problems to make reservations,
provided that these are compatible with the object and purpose of the Con-
vention. Accordingly, a freedom to make reservations is perfectly consistent
with the acceptance of the provisions of the Conventions as stating the generally
recognized rules of international law applicable in the matters in question.
Neither the Convention on the Territorial Sea and the Contiguous Zone nor
the Convention on the High Seas has any clause prohibiting or restricting the
making of reservations, and a number of reservations have in fact been made
to each Convention. Yet no one could deny the fundamental significance of
many of the provisions ofthese Conventions or the essentialcharacter of many
of their other provisions. The same observations may be made with reference
to the Vienna Convention on Diplornatic Relations.

82. A reservations clause is introduced primarily when for particular reasons
it is desired to prohibit altogether reservations to scecific provisions of the
Convention. That this was the casewith regard to Article 12of the Continental
Shelf Convention is clear from the record of the ninth plenary meeting of the
Geneva Conference. Reservations to Articles 1-3were excluded because some
States considered that reservations to these Articles would really deprive the
doctrine of the continental shelf of most of its meaning and destroy the very
basis of the Convention (Ofici aecords,VoI. II,pp. 16-18).But the fact that
reservations to Articles 4-7 were not excluded by the Conference in no way
implies that these Articles were not considered to be an integral and important
part of the Convention. The records of the Conferenceand of the proceedings
of the International Law Commission themselvessufficeto contradict any such
implication.

83. Furthermore, as appears from paragraphs 93-98 below, none of the
States which have becornea party to the Convention-already 37in number-
has forrnulated a reservation questioning the validity of the rules set out in
Article 6.A fewStateshavemadedeclarations of theirunderstandingsregarding
the application of "special circumstances" in their own cases. But there is COUNTER-MEMORIAL OF DENMARK 187

nothing in the practice of States since the Geneva Conference to support the
idea that Article 6 has not been generallyaccepted as an integral and important
part of the Convention.

SectionIII .he Provisionsof Article 6Arein Harmonywith StatePracticein
the Delimitationof Other MaritimeandFresh-WaterBoundaries

84. The equidistance principle, proposed by the cornmittee of experts and

the International Law Commission and adopted by the Geneva Conference,
was far from being a novelty invented by the cornmittee of experts in 1953.
In paragraph 41 of the Mernorial the Federal Republic indeed adrnits that the
"equidistance principle" in its median line form has long been known in inter-
national law:
"Medianlinesas sea, Iakeor river boundariesRaveexisted fora longtime
pasf. In most cases-leaving out of account irregularities in the geograph-
icalconfiguration of thecoastsopposite each other and provided no islands
liebetweenthem-they effectuate a just and equitable apportionment of
the waters between the two States concerned." (Italics added.)

It isrue that later; in paragraph 46, the Federal Republic seerns rather Iess
generous when it asserts that-
"the occasionaldivision of rivers, lakes, or inland seas between two States
lying oppositeeach other by inedian lines is no proof of a general recogni-
tion of the so-calied principle of equidistance also for other geographical
situations than those of opposite coasts" (italics added).
But an examination of the relevant State practicemply justifies the Federal
Republic's kst staternent that "median lines assea, lake or river boundaries
have existed for a long time past", and shows that the use of median line

boundaries has been much more than occasional,
85. In this connection the Court is asked to refer to Annex 13which, without
attempting to be exhaustive, sets out a very considerable number of cases in
which the equidistance principle, chiefly in its median Iine form, has been em-
ployed in the delimitation of sea, lake or river boundaries.The list of cases is
impressive enough even if "thalweg" boundaries are left out of account. But
in many cases, as the Dictionnaire de la Terminologiedu Droit International
points out (p.602),the term Thalwegis used in treaties as denotingthe median
line of the navigable charnel or, where the river is not navigable, simply the
rnedian line of the river.

86. As to the Federal Government's contention1 that any practice in regard
to the use of median lines as boundaries between "opposite" States would be
no proof of a general recognition of the principle of equidistance also for
other geographical situations, this does not seem to be to the point. It is not
here a question of establishing the "equidistance principle" as a principIe
universally binding in boundary delimitation and, as such, binding on the
Parties to the present dispute. Betwee1945 and 1958a new doctrine developed
in international law vesting new rightsin coastal States over the continental
shelf adjacent to their coasts. The question here is of the general recognition,
as part of the development of this doctrine, of the rule that, in the absence of
agreement, inter-State boundanes on the continental shelf are to be delimited
by application of the principle of equidistance uniess another boundary is

Mernorial,para. 46,188 NORTH SEA CONTINENTALSHELF

justified by special circurnstances.In the vjew of Denmark the relevance of the
practice set out in Annex 13 is this: it shows that the rules, proposed by the
cornmittee of experts and the International Law Commission and adopted by
the general body of States at the Geneva Conference, were rules whichwere in
harmoriy with she existing practice of States in the delimitation of boundaries.
This fact-that the rules set out in Article 6 of the Geneva Convention on

the Continental Shelf are not in conflict, but in clear harmony, with existing
principles of boundary delimitation-cannot fail to reinforce and consoli-
date the character of those des as generally recognized rules of international
law.

87. The Federal Republic, however, makes a special point of the novelty of
lateral equidistance boundaries. Contrasting these in paragraph 41 (b) with
rnedian lines between opposite coasts, it states:

"Luteral equidistance boundaries are, in contrast, a novel method of
drawing water boundaries; they had not been put to the test before the
Geneva Conference on the Lawof the Sea of 1958."(Italics in the original.)
Reverting to the question in paragraph 46, the Federal Republic states:

"Only relatively recently has the equidistance line been adopted as a
techniqueforthe drawing of marifime boundaries. (Italics in the Mernorial.)

The drawing of a maritime boundary between two coasts lying opposite
each other is, by the very nature of the circumstances, different from the
drawing of a lareral boundary between two neighbouring States into the
open sea. For the drawing of lateral boundaries the equidistance method
has hardly been practised at all. If among the existing boundaries a small
number of median lines are to be found which grosso modo correspond
to an equidistance line, it does not follow therefrom that the equidistance

line has been generally recognized as the principal mle for the drawing of
maritime boundaries." (Italics added.)
Both these statements seem to need considerable qualification.

88. In the first place, it may be doubted whether lateral equidistance boun-
daries are quite the complete novelty which the Federal RepubIic suggests.
There is a substantial body of practice, as the Federal Republic itselfconcedes,
which is of respectable antiquity and applies the equidistance principle in
delimiting lake boundaries. In the nature of things, an equidistance line in a
lake is a lateral, as well as median line, boundary. Certainly, ai each end of
the boundary where it approaches the shore an equidistance line in a lake has
al1 the characteristics of a lateral equidistance boundary. Furthermore, al-
though it may be true that there is little evidencein treaties or in the legislation
of individual States before 1958of lateral equidistance boundaries in sea areas,
it does not follow that the principle wasnot acted on in practice when occasion
arose. An equidistance boundary is an expression of the concept that each
State should exercise jurisdiction over the areas which are closer to its coast
than to that of the other State, and States have always tended to regard propin-
quity as a basis for asserting their jurisdiction over maritime areas. The tmth

seerns to be that in most cases States did not find it necessary to conclude
treaties or legislate about their lateral sea-boundaries before the question of
exploiting the mineral resources of the seabed and subsoil arose. But even in
regard to treaties, it is not strictly speaking correct that lateral equidistance COUNTER-MEMORIAL OF DENMARK 189
boundaries "had never been put to the test before the Geneva Conference on
the Law of the Sea". One instance isthe Agreement of 28 April 1924 between

Norway and FinIand, which prescribed an equidistance lirie as their boundary
in the Varangerfjord (Annex 13, B, No. 5). Another is the Treaty of Peace of
1947 concluded between the Allied and Associated Powers and Italy which
provided in Article 4 that the boundary between Italy and the Pree Territory
of Trieste from the shore to the high seas should be a line equidistant from the
coast-lines of Italy and the Free Territory; and again in Article 22 that the
seaward boundary between the Free Territory and Yugoslavia should likewise
be a line of equidistance (Annex 13, B, Nos. 1and 2).The Court may find it
significant that in this major collective treaty, when it was necessary to define
a sea-frontier, the equidistance principle was the solution adopted.

89. Secondly, the use of the equidistance principle in its median Iine form
for delirniting maritimeoundaries seems to have been more widelyrecognized
than the Federal Republic's second statement might imply. Quite apart from

the fact thaa number of treaties provided expresslyfor a median lineboundary
in certain straits and channels (see Annex 13D), the replies of govemments to
the questionnaire for the Hague Codification Conference, 1930, were unani-
mous in endorsing the median line as the boundary between overlapping terri-
torial seas in straits. Point VI1 of the questionnaire asked for information con-
ceming :

"Conditions determining what are territorial waters within a strait con-
necting two areas of open sea or the open sea and an inland sea:

(a)when the coasts belong to a single State;
(b) when they belong to two or more States."

Nineteen States replied, of which 15 without any hesitation or qualification
specifiedthe median line as the boundary in casesunder (b) when the territorial
seas overlap; the other 4 did not deal with the point (Proceedings of the Con-
ference, Vol. II, Bases of Discussion, pp. 55 to 54). Arnong the States which
thus endorsed the median line were Germany, Denmark and the Netherlands.
Furthermore, the draft Convention submitted to govemments by the League
of Nations Committee of Experts in connection with the questionnaire also
provided for a median line boundary in straits; and the Rapporteur of this
Committee was the distinguished German international lawyer, M. Schücking.
(Ibid.,p. 193.)

90.No doubt, there are elements of novelty in the provisions of Article 6
of the Geneva Convention on the Continental Shelf. Not only was the doctrine
of the continental shelf itself still new1958, but the practice on which it was
based still dealt with the problem of boundaries in entirely general terms. The
provisions of Article 6 were admittedly a new element grafted on to the con-
tinental shelf doctrine at the Geneva Conference. But this elernent, as already
pointed out, was not novel in the sense of being a new concept or one out of
harmony with existing principles for the delimitation of maritime boundaries.
On thecontrary, it wasan expression of aprinciple already known and accepted
in State practice in relation to maritime boundaries. That the provisions of
Article 6 are not only in accord with previous practice and principle but are
generally accepted today as the modern law governing continental shelf boun-
daries is amply confirrned by the practice of States since the Geneva Con-

ference of 1958. NORTHSEA CONTINENTALSHELF

Section IV. The StatePractice Since the Geneva Conference
of 1958

91. In paragraph 54 of the Memorial the Federal Republic asserts that the

equidistance principle cannot be considered as having been generally accepted
as a rule of Law by the international cornmunity:
"This is excluded not onIy by the fact that the Convention has, up to
now, been accepted onlyby a minority of the States (to date 37)and that
reservations to Article 6 have been made by sorne States, but above al1
by the fact that State practice necessary for the development of such a
custornary mle is up to now still lacking."
The reasons there given by the Federal Republic for its assertion, as will be

shown, are wholly unconvincing. But it is necessary firstto point out that the
assertion itself presents the issue incorrectly. It is not the equidistance rule pure
and simple which is generally accepted bythe international community as the
applicable Lawtoday; it is the "equidistance rule unless another boundnry is
justified by specialcircumstances".
92. The argument that "the Convention has, up to now, been accepted only
by a rninority of the States (to date 37)" is a litde surprising. The number of
acceptances l-37in under ten years-is decidedly irnpressivebyany standards
- in the light of the past record of the dilatoriness of States in carrying out the
process of acceptance. This nurnber, moreover, exceeds by four the nurnber of
acceptancessofar givento the Territorial Sea and Contiguous Zone Convention,

and is only three short of the number of acceptances of the High Seas Conven-
tion, a Convention recognized to be primarily declaratory of customary law.
In short, the fact that 37 States have already taken the forma1steps necessary
to establish definitivelytheir acceptance of the Convention can only beregarded
as very solid evidence of the general acceptance of the Geneva Convention
on the Continental Shelf by the international cornrnunity.
93. Nor is the evidentiary value of the 37 acceptances of the Continental
Sheif Convention materially weakened by the so-caUed "reservations" to
Article 6. Only four acceptances contain any observation relating to Article 6.
The Iranian observation, which the Federal Republic considers to be "without
interest", reads:

"Article 6: With respect to the phrase 'and unless another boundary
line is justifiby special circumstances' included in paragraphs 1 and 2
of this article, the Jranian Governrnent accepts this phrase on the under-
standing that one rnethod of determining the boundary line in special
circumstances would be that of measurement from the high water mark."
This observation, which refiectsa position already taken by Iran at the Con-
ference, is by no means without interest; for it shows that Iran gave special
attention to Article 6 and, having done so, fully accepted the "equidistance-
specialcircumstances" provisions of the article, subjectonly to an understanding

as to a particular interpretation of "special circurnstances".
94. Yugoslavia's observation, which is not mentioned in the Memorial, and
which aIso reflects a position taken by her at the Conference, reads:
"Subject to the following reservation in respect of Article6 of the Con-
vention :

l Forconvenience,the word "acceptances"is hereused,not as a technical term,
but as coveringratifications,accessionand "notificationsof succession". COUNTER-MEMORIAL OF DENMARK 191

In delimiting its continental shelf, Yugoslavia recognizes no 'special
circumstances' whichshould influence that delimitation."
This observation, whether it be regarded as a "reservation" or as an inter-
pretative "declaration", certainly does nothing to weaken the authority of the
Convention or of Article 6 as the generally accepted law. On the contrary, it
assumes the general validity of the provisions of Article 6 and forthat reason

declares Yugoslavia's understanding as to the application of the "special cir-
cumstances" clause to her own continental sheif.
95. Venezuela in signing the Convention made the following observation:
"The Republic of Venezuela declares with reference to Article 6 that
there are special circumstances to be taken into consideration in the fol-
lowing areas: the Gulf of Paria, in so far as theboundary isnot determined
by existing agreements, and in zones adjacent thereto; the area between
the coast of Venezuelaand the isIandofAruba ;and the Gulf ofVenezuela."

Her instrument of ratification, however, simply said:
"Reservation made upon ratification ... with express reservation in
respect of Article 6 of the said Convention."
This reservation is interpreted in the Mernorial-no doubt correctly-not
as a general rejection of Article 6 but as a reservation with respect to its ap-
plication "in certain areas off the Venezuelan coast". Because of the implica-

tions of the reservation for th, parts of the Kingdom of the Netherlands situated
in the Caribbean Sea the Kingdom, when ratifying the Convention, filed a
forma1obiection to the Venezuelan reservation.
96. The last of the four acceptances containing a reference to Article 6 is
the "Declaration" made by France on the occasion of her ratification of the
Convention :
"ln the absence of a specificagreement, the Government of the French
Republic will not accept that any boundary of the continental shelf deter-
minedbyapplication oftheprinciple ofequidistanceshall beinvokedagainst
it:

ifsuch boundary is calculated from baselines established after 29 April
1958 ;
if it extgnds beyond the 200-metreisobath;
if it lies in areas where, in the Government's opinion, there are 'special
circumstances' withinthe meaning of Article 6, paragraphs 1 and 2,that
is to Say: the Bay of Biscay,the Bay of Granville, and the sea areas of the
Straits of Dover and of the North Sea off the French coast."
The first two of these conditions relate to special points which are of no in-
terest in the present connection. As to the third condition, which is clearly of
interest, the Federal Republic cornments:

"A point of particular interest in this reservation is that it is based on
the viewthat the equidistance line, as far as it is to be applied at all, should
be used as a method of apportioning submarine areas only near the At-
lantic coast (to a depth of 200 metres) and should in particular not be
used for the apportionment of the North Sea1."
This comment appears to place much too large an interpretation on the
French Declaration.

97. Here also it seems clear that the Declaration is not a general objection

Mernorial, para. 55.192 NORTH SEACONTINENTAL SHELF

to or reservation of Article 6. The Declaration, by its very terms, assumes the
application of the provisions of Article 6. Its object is only to state the French
Govemment's viewsas to the existence of "special circumstances" in a number
of areas off the French Coast. The French Declaration respecting Article 6,
it niay be added, gave rise to forma1objections on the part of the NetherIands,
the United Kingdom, the United States and Yugoslavia.

98. In short, the four acceptances which contain references to Article 6,
sofar from weakeningthe authorityof Article 6as an expressionof the generally
recognized rules of law goveming continental shelf boundaries, only serve to
confirm it. By invoking the exception of "special circumstances" included in
Article6,thefour Statesconcernedexpresslyrecognizedthevalidity, and claimed
the benefits, of thprovisions of that article.

99, The Federal Republic itself, as already mentioned, voted against the
adoption of the Convention at the Geneva Conferenceand hasnot sinceratified
or acceded to the Convention. It is, however, very far from being the case that
the Federal Republic has persisted in its opposition to the Convention or to the
principles which the Convention contains. On the contrary, as pointed out in
Chapter III of Part 1, the Federal Republic signed the Convention on 30 Oc-
tober 1958,only one day before the Convention ceased to be open for signature.
In other words, having reconsidered the matter and having fully studied the
provisions of the Convention, the Federal Republic decided to associate itself
with the Convention adopted at Geneva by attaching its signature to the text.
After 30 October 1958 the Federal Republic, without any prior signature,
would stillhave been free to become a party to the Convention by "accession";
so that there can be no doubt that on that datethe Federal Republic very delib-

eratelychose to associate itselfwith the Convention. Furthermore, when signing
the Convention, the Federal Govemrnent evidently gave everyattention to the
question of the acceptability to the Federal Republic of the individual provi-
sions of the Convention; for it did accompany its signature of the Convention
with a special declaration recording its understanding of one Article. This was
Article 5, with regard to which it declared that, in its opinion, paragraph 1
"guarantees the exercise of fishing rights in the waters above the continental
shelf in the manner hitherto in practice". The Court may think it somewhat
significant that, whereas the Federal Republic considered it necessary with
respect to Article 5 to reserve its position in regard to freedom of fisheries in
the high seas above the continental shelf,itmade no reservation nor any other
form of declaration with respect to the provisions ofA~ticle 6 concerningthe
delimitationof continentalshelfboundaries.The significanceof this circumstance
is reinforced by the fact that the Federal Republic did not voice any objection
or misgivingsin regard to Article 6 of the Convention either in its Continental

Shelf Proclamation of 20 January 1964 or in the Exposé des Motifs accom-
panying the Bill to give eEect to the Proclamation. (Annexes 10 and 11.)It is
further reinforced by the fact that subsequently the Federal Republic entered
into no less than three treaties providing for delimitations which are in full
conformity with the principles set out in Article 6 (see paras. 103 and 105,
below).
100. If the acceptances of the Convention by States since 1958 testify, by
their nurnber and character, to the general recognition by the international
comrnunity of Article 6 asexpressing the rules ofinternational law governing
continental shelf boundaries, so also does the practice of States in applying

the Convention. In appreciating that practice it is again necessary to keep in
mind-as the Federal Republic does not do in its Memorial-that the rule COUNTER-MBMORIALOF DENMARK 193

laid down in Article 6 is not the application of the equidistance principle pure
and simple but its application "unless another boundary is justified by special
circumstances". When that point is kept in rnind, it at once becornes apparent
that the practice of States since 1958,with the singleexception of the Federal
Republic's position in the present case, gives solid support to the recognition
of Article6 as the expression of the general des of international law goveming
continental shelf boundaries today.

101. In paragraph 57 of the Memorial the Federal Republic lists three prece-
dents in which States not yet parties to the Convention have applied the prin-
ciple of equidistance, making a great point of the fact that each of them was a
case of "opposite coasts". The first is the Island of Malta Act 1960, making
provision as to the exploration and exploitation of the continental shelf, which
states that, in the absence of agreement, the boundary is to be:

"the median line, namely, a line every point of which is equidistant from
the nearest points of the base-lines".
Malta being a mid-Mediterranean island, the Malta Act was necessarily
limited to "median lines" between "opposite" coasts. It may, however, be
noted that subsequently Malta became a party to the Convention and thus
subscribed to the provisions of Article 6 in toto.
102. The second exarnple mentioned in the Memorial is the Soviet-Finnish
Agreement of May 1965 regarding the Boundaries of Sea Waters and the Con-
tinental Shelf in the Gulf of FinIand, although it would appear that in fact both
the Soviet Union and Finland had already becorne parties to the Geneva Con-

vention before they concluded this Agreement. On this Agreement the Federal
Republic comrnents :
"This treaty, in establishing the boundary near the coast (Article 1),
where it may be regarded as a lateral boundary between adjacent States,
does not follow the principle ofequidistance. Only on its seawardextension
where it becomes a boundary between two opposite coasts, it is based on
the principle of the median line which isreferred to in the treaty (Articles2
and 3)."
If itmay be true that under Article 1the inshore boundary between the two
States does not in al1respects follow the equidistance line, the Agreement itself

supplies the explanation (Annex 13, A, No. 10). That part of the boundary is
governed by the provisions of the Peace Treaties of 1940 and 1947, so that
Article 1 reflects a special circurnstance already existing when the Agreement
of 1965was concluded.In the areas to seaward of the Peace Treaties boundary,
on the other hand, Articles 2 and 3of the Agreement prescribethe rnedian line.
If in these areas the Soviet and Finnish coasts assume the appearance of "op-
posite" coasts, it is no less true that the median line boundary through these
areas is a continuation of a lateral boundary dividing two "adjacent" States.
Nor does the Federal Republic mention that in the recitals to the Agreement
the twoStatesmake an expressreferenceto their relianceupon the 1958Geneva
Convention on the Continental Shelf.
103. The third example rnentioned in the Memorial is the Protocol to the
Danish-GermonTreaty of9 June1965. This Protocol, after noting the existence
of divergent views between the Parties concerning the principles applicable to
the delimitation of the continental shelf of the North Sea, provides with regard

to the Baltic:
"With respect to the continental shelf adjacent to the coastsof the Baltic
Sea which are opposite each other, it is agreed that the boundary shalIbe 194 NORTH SCA CONTWENTAL SHELF
the median line. Accordingly, both Contracting Parties declare that they
will raise no basic objections to the other Contracting Party's dehiting

its partof thecontinentalshelfof theBaltic Sen on the basis of the rnedian
line." (Italics added.(See Annex 7 A of the Memorial.)
, ' Here also the sharp distinction drawn by the Federal Republic between
"opposite" and "adjacent" coasts seems somewhat strained. Any delimitation
by Denmark or by the Federal Republic of "its part of the continental shelf of
the Baltic Sea on the basis of the rnedian line" must at its western end rnerge
into the lateral "equidistant" line drawn from the shore through ht the terri-
torial seas and then the continental shelves of the two countries. To make a
sharp distinction at this western end between "adjacent" and "opposite" coasts

and between the "lateral" and the "median" character of the equidistant line
seemsaltogether arbitrary .
104. In paragraphs 58 and 60 the Federal Republic tums its attention to the
practice,which it evidentlyfindssomewhatembarrassing, of a number of North
Sea coastal States, including itself. This practice, with which the Court wiil
already be largely familiar, consists in the first place of five treaties in which
the continental sheifboundaries between fivedifferentpairs of North Sea States
are delimited purely and sirnply by application of the equidistance principle:

(a) UnitedKingdom-Norwayof 10 March 1965;
(b) Netherlands-UnitedKingdomof 6 October 1965;
(c) Denmark-Norwayof 8Decernber 1965;
(d) Denmark-United Kingdom of 3 March 1966:
(e) Denmark-Netherlandsof 31 March 1966.
These Agreements were al1separately negotiated and concluded. Moreover,
Norway, who is aparty to two of them Agreements, acted on the basis of the
equidistance principle, although she is not herself yet a party to the Geneva
Convention-a point not mentioned in the Mernorial. Indeed, it may be added

in passing that the Netherlands also adopted the equidistance principle in its
Agreement with the United Kingdom at a time when the Netherlands had not
yet ratified the Geneva Convention. In addition, Belgium has recently adopted
the equidistance principle for the delimitation of her continental shelf boun-
daries, although she too is not a party to the Continental Shelf Convention.
On 23 October 1967 the Belgian Government introduced in the Belgian Par-
liment a "Projet de Loi", Article 2 of which provides that Belgium'sboundary
with the United Kingdom is determined by the median line and her boundaries
both with France and the Netherlands by the line of equidistance (Annex 14).
Furthermore, the "Exposédes Motifs" explainingthe Law expresslyStatesthat
these provisions wereadopted in conformity with ArticIe 6, paragraphs 1and 2,
of the Geneva Convention.

105. The North Sea practice also comprises two treaties concluded by the
Federal Republic itself concerning the lateral delimitation of the continental
shelf near the Coast:
(a) FederulRepublic-Netherlatzdsof 1 December 1964;
(b) FederalRepublic-Denmarkof 9 June 1965.
The Federal Republic rnaintains that these treaties cannot be considered
precedents for the recognition of the equidistance method in the North Sea:

"It is true thatinthe treaty between Germany and the Netherlands the
boundary line, to sorneextent, foUowsin fact the equidistance line, without
however referring to the equidistance method, and that the seaward ter-
minus of the Gerrnan-Danish partial boundary is equidistant from the COUNTER-M~ORIAL OF DENMARK 195
German and the Danish coasts. These boundaries, however, had been
agreed upon only because both sides were interested in a speedy deter-

rnination of the boundary, and because the boundary line, even if it in
fact foIlowedthe equidistant line to someextent in the vicinity of the coast,
was not considered inequitable l."
These explanations only serve to underline the difficultyin which the Federal
Republic finds itselfinregard to the North Sea practice.
106. The real point at issue is not whether the two "partial boundary"
treaties may be considered as precedents for the recognition of the "equidistant

method" in the North Sea, though Denmark thinks that they clearly are such
precedents. It is whether they constitute yet further instances of the recognition
of the rules contained in Article 6 of the Geneva Convention as the generally
accepted law regarding the delimitation of continental shelf boundaries; and
both treaties seem to fa11squarely within the provisions of Article 6, para-
graph 2, of the Convention. Jn each case the treaty takes account of the special
circumstance that an inshore boundary line has already been fixed under a
previous treaty between the Parties concerned. In each case, starting from the
most seaward point of the already existing line, the treaty proceeds to delimit
for a considerable distance out to sea a continental shelf boundary which in
fact follows the equidistance line. Both treaties are therefore in perfect harmony
with the "equidistance-speciai circumstances" rules found in Article 12 of the
Territorial Sea and Contiguous Zone Convention and in Article 6 of the Con-
tinental Shelf Convention.

107. As to thevalue ofthese North Seatreaties as precedents,what difference
can it make that they do not refer expressly to the "equidistance principle" if
in fact they deterrnine the boundary by application of that principle? Further-
more, if the Federal Republic did not then recognize the general character of
the provisions of Article 6 of the Geneva Convention, why in the case of its
treaty with the Netherlands did it in the Joint Minutes of 4 August 1964
(Memorial, Annex 4 A) speak of the Treaty as constituting "an agreement in
accordance with the first sentence of paragraph 2 of Article 6 of the Geneva
Convention on the Continental Shelf, dated 29 Apràl 1958"?and why did it in
those same Joint Minutes underline that the boundary was being determined
"with due regard to the special circurnstancesprevailing in the mouth of the

Ems" (italicsadded), if it did not have in mind the language of Article 6, para-
graph 2, of the Geneva Convention? These questions are al1the more pertinent
when it is recalled that bothin its Continental Shelf FrocIamation of 20 Janu-
ary 1964and in the Exposédes Motifs of the Billgivingeffectto the Proclama-
tion'the Federal Republic emphasized the significanceof the Geneva Conven-
tion of 1958in the development of general international lawregarding the con-
tinental shelf (Annexes 10and 11).
108. Again, what difference can it make that in each case both sides were
"interested in a speedydetermination of the boundary" if in fact, afterdue con-
sideration of their interests, they determined the boundary by applying the
principle of equidistance in the light of the special circumstances-the very
solution conternplated by Article 6 of the Convention?

109. And what is the Court to understand by the final explanation given by
the Federal Republic: "Because the boundary line, even if it in fact followed
the equidistant line to someextent in the vicinity of the coast, wasnot considered
ineqdtabïe" (italics added)? Presumably that the Federal Republic recognizes

Memorial, para. 60.196 NORTH SEA CONTINENTALSHELF
that a determination of the lateral boundaries of her continental sheif in the
North Sea in accordancewith theprinciples envisagedinArticle 6 of the Ceneva

Conventiongives a perfectly equitable result at any rate for acertain distance
out to sea. If such is the meaning of the Federal Republic's explanation, it is
pertinent to point out that the statement that the boundaries fixedin the treaties
in fact follow "the equidistant line to some extent in the viciniîy of the coast"
(italics added) ia little misleading. In the vicinity of the coast the boundaries
in fact give effect to special circumstances in the forrn of pre-existing agree-
ments. It is in extendinthe lineovevthe continentalshelfof the openNorth Sea
that these two treaties concludeby theFederalRepüblic determine the boundary
by applicationoftheprinciple of equidistanceinthemannerenvisagedby Article 6
of the Convention.
110. The Federal Republic, however, claimsthat the two "partial boundary"
treatiescannot be invokedagainst it asprecedentsfor theapplication ofthe prin-
ciple of equidistance inthe North Sea because it "stated clearly when signing

the treaties that it did not recognize the equidistance method as determining
the extended seaward course of the boundaries in the North Sea"'. It is true
that in its Joint Minutes with the Netherlands of 4 August 1964 and in its
Protocol with Denmark of 9 June 1965the Federal Republic reserved its posi-
tion with regard to the further-seaward-course of the boundary; and from
this it may foliow that the "partial boundary" treaties cannot be invoked as
themselves imposinga confractllalobligation on the Federal Republic to com-
plete its continental shelf boundaries seawards by application of the equidis-
tance principle. But it does not at al1folIow that these two treaties cannot be
invoked as precedents-which they manifestly are-of the determination of
continental shelf boundaries in the North Sea by application of the principles
containedin Article 6 of the GenevaConvention.In short, the solemn fact is that
ail the continental sheif boundaries, including those of the Federal Republic,
so far established in the North Sea as well as in the Baltic reflect the principles
of Article 6 of the Geneva Convention.

111. Two further arguments of the Federal Republic in relation to the State
practice requirebrief notice. One is a general argument in paragraph 56 of the
Memorial to the effect that the practice does not show such a consistency and
uniformity of usage as would sufficeto establish the "equidistance principle"
as a ruleof customary law. This argument, as the foregoing review of the prac-
tice shows, is highly questionable merely on the facts. But it is in any event
beside the point since, as already ernphasized, it is not the equidistance prin-
ciple pure and simple which is in issue but the "equidistance principle-special
circumstances" mle of the Geneva Convention. For the general recognition of
this rule there is abundant evidence in the State practice since 1958.(Seeparas.
91 -105above.)
112. The other argument-in paragraph 59of the Mernorial-is to the effect
that the North Sea practice cannot be regarded as showing that "the equidis-

tance method has been promoted to the status ofa rule of regional customary
law valid for the North Sea". This argument is supported by the contentions
that: (a) any such view is precluded by the fact that France in her reservation
to Article 6 expressly excluded the equidistance method for the drawing of
boundaries in the North Sea; and (b] no such regional rule can be established
without the concurrence of the Federal Republic. The whole of this argument
is again vitiated by its concentration on "the equidistance method" instead of

* Memorial,para. 60. on the "equidistance-speciai circumstances" nile, Nor, as pointed out in para-
graphs 96 and 97 above, is it correct to say that France's declaration seeks to
negate altogether the application of the provisions of Article 6, including the
equidistance principle, in the North Sea. On the contrary, her declaration ad-

mits the application of the article and claims the benefit of the "special cir-
curnstances" provision. In any event, the question is not one as to the establish-
ment of a particular regional custom. It concerns rather the recognition of the
rules set out in Article 6 of the Convention as the generally accepted rules of
international law governing the delimitation of the continental shelf. This, as
already pointed out, the practice of States, including that of the Federal Re-
public, since 1958abundantly shows.
113. A finalargument put forward by the Federal Republic in paragraph 61
of the Memorial must now be noticed: namely that Article 6 cannot be said to
have becornegeneralinternational lawmerelybecause thisis what has happened

in the case of Articles 1to 3 of the Geneva Convention. It argues that the pro-
visions of Article 6 are not so indissolubly bound up with the basic principles
in Articles1 to 3 as necessarily togo with them:
"Ttis true that a necessary, logicalconsequence of the recognition of the
right of the coastal State over the continental shelf is that, in the case of
conflictingclaims of severalcoastal Statesadjacent to the sarnecontinental
shelf, an apportionment must be made between them, and that the inter-
national legalorder must provide rnethodsand standardsfor the apportion-
ment. There is, however, no cogent reason that this apportionment must
be made according to the equidistance method. The drafting of Article 6
shows that the equidistance method was only one method among others
of attaining a just and equitable apportionrnent, and that the objections

against making the equidistance method the exclusiverule were so strong
that the equidistance method was adopted only under the condition that
it would not apply in the presence of any 'special circumstances'. The
apportionment of a continental shelf shared by several States has not been
made easier by Article 6. Even when Article 6 is applied, the question re-
mains open whether the equidistance method is suitable or whether in a
concrete case 'special circumstances' exist which would justify another
boundary line."
114. Thisargument is again misdirected by reason of itsconcentration on the
"equidistance principle" pure and simple instead of on the "equidistance-
specialcircurnstances rule". In the context of Article 6 it is both irrelevant and
inadmissible to Say that "the equidistance method is only one method arnong
others of attaining a just and equitable apportionment". It is irrelevant because

thearticle itsdf adrnits the possibility of another boundary line ifsuchisjustified
by "special circumstances". It is inadmissible because Article 6 nevertheless
makes the equidistance principle the general mle unlessspecial circumstances
jmrifv another boundary. Under the provisions of Article &the authoritative
statement of the generally recognized principles-the equidistance principle is
not just one method among others; it is the general rule.
115. Moreover, there were cogent reasons why Article 6 should state the
equidistance principle as the general rule-reasons which are linked to the
ratio legisof Articles 1and 2. Under Articles 1and 2 each coastal State is now
recognized to possess ips ure sovereign rights of exploration and exploitation
over the seabed and subsoil of the submarine areas adjacent to its coast. In-
herent in the concept of a coastal State's titips ure to the areas adjacent to

its coast is the principle that areas nearer to one State than to any other State198 NORTH SEA CONTINENTAL SHELF
are to be presumed to fa11withinits boundaries rather than within those of a
more distant State. Clearly, it is this principle which alsounderliesthe delimita-
tion of "rnedian line" and "equidistant linel'boundariesinother maritime and

fresh-water contexts. In other words, this principle establishes a direct and
essential link betweenthe provisions of Article 6 regarding the equidistance
principle and the basic concept of the continentaI shelf rewgnizein Articles 1
and 2 of the Geneva Convention of 1958.
116. Accordingly, under Articles 1 and 2, as wellas under Article 6, of the
Geneva Convention it is incumbent on any State which Iays daim to areas of
continental shelf which are nearer to the coast of another State to establish
the legal grounds on which its title shouIdbe preferred to that of the nearer
State. COUNTER-MEMORIALOF DENMARK

CHAPTER IV

THE APPLICABLE PRLNCIPLES STATED UV ARTICLE 6 OF THE
CONVENTION ON THE CONTINENTAL SHELF

117. Article 6 of the Geneva Convention, as the Court knows, has two prin-
cipal paragraphs, the first of which applies to States whose coasts are opposite
each other and the second of which applies to States whose territories are ad-
jacent to each other. The present case between Denmark and the Federal Re-
public of Germany rnanifestlyrelates to the delimitation of the continentalshelf
between adjacent States, as does also the other case before the Court between
the Netherlands and the Federal Republic. Accordingly, it is paragraph 2 of
Article6 which primarily interests the Court.
118. Paragraph 2 of Article 6, like paragraph 1, contains two main provi-
sions, one stating that the boundary shallbe determined by agreement between
the Statesconcerned and theother layingdown the nile for caseswhereno agree-
ment is reached. In the present instance, negotiations for a determination of the
. boundaryby agreementhave takenplace in each ofthe two cases before the
Court, and have resulted in a deadlock; and in each case the "Special Agree-
ment", in its fourth recital, expressly records the existence of a "disagreement
between the Parties which could not be settled by detailed negotiations". It

follows that in the two cases in which the Court is now called upon to decide
the applicable "principles and rules of international law"isonly the second
provision of paragraph 2 of Article 6 which is pertinent:
"In the absence of agreement, and unless another boundary line is
justified by special circurnstances, the boundary shaii be determined by
application of the principle of equidistane from the nearest points of the
baselines from which the breadth of the territorial sea of each State is
rneasured."

119. Before examining the meaning of this provision, Denmark finds it
necessaryto draw the Court's attention to certain pointstouching theprovisions
of both paragraphs 1and 2of Article 6.First, quite apart from the close similar-
ity of the language, the substantive niles stated respectivelyfor "opposite" and
"adjacent" States in the twoparagraphs are preciselythe same. Each paragraph
opens with a provision for determination of the boundary by agreement and
then provides, in the absence of agreement and unless another boundary is
justified by special circumstances, for the determination of the boundary by
application of the pBnciple of equidistance. No doubt, paragraph 1states that
"the boundary is the median line, every point of which is equidistant frorn the
nearest points .. .",etc. (italics added), whereas paragraph 2 states simpIy
that "the boundary shaIl be determined by application of the principle of
equidistance frorn the nearest point.. .",etc. But this differenceis purely one
of terrninology and in each paragraph the rule-the principle of equidistance
from the nearest points of the baselines of the territorial sea, unless another
boundary isjustified by specialcircumstances-is the same.Accordingly,Article
6 furnishes no basis whatever for the therne which recurs more than once in the
Mernorial that "median lines" between opposite Statesare both more generally
recognized and more generally equitable than lateral equidistance lines. On
the contras., Article 6 does not distinguish in any way between the treatment200 NORTH SEACONTINENTAL SHELF

Figure 1

of the two cases. Moreover figure 1shows that a proper median line-like other
equidistance lines-may well result in neighbouring States having shelf areas
not proportionate to the length of the coast-lines.
120. Secondly, there is not the slightest trace in Article 6 of the idea put
forward in paragraphs 63-67of the Memonal that, whereas the application of

the equidistance principle may be equitable and appropriate in the case of
median lines between oppositeStatesand also of lateral lines between adjacent
States near the Coast, it is altogether unsuitable for the delimitation of larger
submarineareas out in the open sea. Inthose paragraphs the Federal Republic
argues that in the largersubmarine areas out to sea "the equidistance principle
lends disproportionate signi6ance to special configurations of the coastW1.
In support of this argumentit cites an observation of Mr. S. Hsu in the Inter-
national Law Commission in 1951 opposing the solution of prolonging the
territorial sea boundaryover the continentalshelf:
"The dividing-linewould be relatively unimportant in the case of tem-
torial waters, which werea narrow belt, but rnight take on great significance
and cause injustice if applied to continental sheIveswhich weresometimes
of considerable extent

It is a sufficientcomrnentary on this argument that the Federal Republic can
only base it on an observation made with reference to prolonging the dividing
Iineof territorial watersseawardsin 1951 before the Commission had obtained
the advice of the committee of expertsand before it had even begun its studyof
the territorialsea (see para. 63 of the previous Chapter of this Part). The
Federal Republic passes over the fact that, notwithstanding the observation
of Mr. S. Hsu, the committee of experts in its report in 1953 and the Inter-

Mernorial,para. 63.
Ibid., para67. national Law Commission in its reports of 1953 and 1956 not only adopted
the same principles of delirnitation for the continental sheif as for the terri-
torial sea but underlined the importance of doing so. The cornmittee of experts,

the Commission and the Geneva Conferencewere weil aware of the existence
of large expanses of continental shelf in the North Sea, Baltic, West Atlantic,
China Seasand other areas. Yet in none of these three bodies wasanydistinction
drawn between large or small areas of continental shelf or between near-shore
or distant areas. The equidistance principle was deliberately adopted by the
Commission and the Conference as the general rule everywhere except only
where another boundary is justified by special circumstances.

121. Again, the Federal Republic seeks in paragraph 67 to justify its distinc-
tion between near-shore and more distant areas by an argument which at-
ternpts to reduce the application of the equidistance principle to absurdity :
"The fact that the equidistancernethod is unsuitable for the apportion-
ment of extensive sea areas far from the coast has become obvious since
exploitation of the seabed at greater depths and at greater distances from
the coast cails for a legal settlement."

And then, in figure 15 it presents a drarnatic diagram of the whole North
Atlantic Ocean divided among its littoral States by equidistance boundaries.
Leaving aside any question as to the particular boundaries shown on the dia-
gram, Denmark considers that this argument is completely fallacious. The
problem thrown up by technological advances in the exploration and exploita-
tion of the ocean deeps-a problem already raised by Malta in the United Na-
tions-concerns the limit to be placed on the very concept of the continental
sheif, having regard to its indeterminate definition in Article I of the Conven-
lion. It does not concern the principles of delimitation already accepted for
areas which undeniably faIl within the concept of the continental shelf; and

its irrelevance in the present caseis underlined by the fact that none of the sub-
marine areas in dispute are more than 67 metres beIowthe surface of the sea
or more than 14ûsea milesfrom land.The fallacyof the argument in the present
case is indeed underlined by the position taken by the Federal Republic in the
Memorial in regard to the application of the equidistance principle in the
North Sea. In paragraphs 89 and 90 the Federal Republic expressly records its
recognition of the appropriateness and equitableness of the median line bound-
ary accruing to the United Kingdom in the North Sea under the equidistance
principle, despite the largenessof the "share" of the North Seawhichthe United
Kingdom thus obtains. At the same time, the Federal Republicunderlines that
this large share is "the consequence of natural geographical conditions".
True, it argues that it is the "land mass" of the British Isles whichjustifies the
large British share. Under Article 1 of the Geneva Convention, however, it is
not land nrassbut coast to which the conthenta1 shelf appertains; and under
Article 6 it is the configurations of the coast-the baselines of the territorial
sea-which constitute the "natural geographical conditions" that determine
the boundaries of the shelf and thus the size of the "share".

122. Another argument put forward by the Federal Republic to justify the
above-mentioned distinction is that the differencein the language of Article 12
'of the Territorial Sea Convention and Article 6 of the Continental Shelf Con-
vention shows the Geneva Conference to have recognized that the equidistance
principle has a widerscope of applicationin regard to the territoriasea rhanin
regard to the continentalshelf:Having observed in paragraph 64 that, from the
point of view of control over the territorial sea, distance from the coast is an 202 NORTH SU CONTINENTALSHELF
indispensable criterion for the apportionment of territorial waters, the Federal
Republic observes:

(a) Under Article 12 of the Territorial Sea Convention "the equi-
distance method does not apply only-'. .. where it is necessaryby reason
of historic title or other special circumstances to delimit the territorial
seas of the two States in away which is at variance with this provision' ",
(6) Under Article 6 in the case of the Continental Shelf Convention
"the equidistance method does not apply already where-'. .. another
boundary line is justified by special circumstances .. ."'.(Italics in the
Mernorial.)
This interpretation ofthe two Articles, even if it were sound, would not ad-
vance theFederal Repubiic'sargumentoneinch; for it remains thefact that the
Geneva Confërence and Article 6 of the Continental Shelf Convention made
no distinction whatever betweennear-shore and more distant areas of the con-

tinental sheif. Furthermore,the difference in wording between the two Articles
is far from justifying the conclusion drawn frorn it by the Federal Republic.
123. The International Law Commission, the Court will recall,insisted that
the principles for delirniting thboundar yf the territorial sea and the con-
tinental shelfought to be the same. In the finaldraftadopted in 1956the wording
of the Commission's provisions regarding the territorial sea (Art. 12, para. 1,
and Art. 14,para. 1)and its provisionsregarding the continental sheif (Art. 72)
was, in fact, almost identical and in the form: "In the absence of agreement
and unless another boundary isjustified by specialcircumstances,the boundary
is drawn by application of the principle of equidistance." The Geneva Con-
ference, it is true, reworded the territorial sea formula (Art. 12, para. 1)to
that given inthe MemoriaI. At the same the, however, it completely redrafted
the whole paragraph and if did so for reasonsquifeunconnected with the con-
siderarionsadducedby the FederalRepublic.Nonvay pointed out-as indeed
she had to the Cornmission-that a rule simply providing for the application
of the principle of equidistance, uniess another boundary is necessitated by
special circumstances, was not adequate in the caseof theterritorial sea becasse
of the possibility ththe States concernedn~ightbe claimingdifSerentbreadths
of the territoriala. Accordingly, what was needed instead for the territorial
sea was a negative rule forbiddingeachState fo extendifs territorial seabeyond
the equidistanceline.The Conference adopted the Nonvegian proposal, at the

same time deciding that it was still essential to make allowance for "special
circumstances" and, in particular, for historic claims. The new negative form
of the Article meant that it had to be completely recast,and this was done in
the First Cornmittee, whereas the continental shelfwas dealt with in the Fourth
Comrnittee. There is no indication in the records of the Conference that the
difference in the formulation of the territorial sea and continental shelf provi-
sions was due to anything eIse than the difficulty brought up by Norway and
the vicissitudes of drafting in diEerent Cornrnittees.
124. Furthermore, it is only necessary to giance at paragraph 82 of the Inter-
national Law Commission'sreport for 1953to see how strained is the inference
which the Federal Republic seeks to draw fromthe differencebetween the word
nece.~saryin the TerritorialSeaConventjon and the word justi$ed in the Con-
tinental Shelf Convention (Yearbook,1953, Vol. II, p.216). In that paragraph
the Commission actualiy explains the phrase "unless another boundary is
justifiedby special circumstances" by reference to the need to make provision
for modifications of the equidistant line hecessitatedby the special circum-
stances of the case. 125. Nor is it possible to attach any weight to the criticism directed against
the equidistance principle in paragraph66 of the Mernorial, that this principle
doesnot take into account what mi& be calledthe "quality" of the masts

the points of which are taken as a basis for the construction of the equidistance
line. The equidistancemethod, it says, does not iakeinto account "... whether
...uninhabitedpromontories, harbourlessislands, or denselyinhabitedstretches
of coasts with plenty of harbours are involved". And it then argues:
"From the point of view of expIoitation and controI of such submarine
areas, the decisivefactor is not the nearest poion the coast, but the near-
est coastal area or port from which exploitationof the seabed and subsoil
can be effected. The distance of an oil, gas orminera1 deposit from the
nearest point on the coast is irrelevant for practical purposes, even for the
layingof a pipeline, if thispoint on thecoast doesnot offeranypossibilities
for setting up a supply base for establishing a drilling station or for the
landing of the extracted product."
This argument is in itself wholly invalid, since experience shows that, if a

deposit is exploited, the nearest points on the coast, even if theretofore unused
or scarcely inhabited, may be deveIoped into important elernents of support
for the exploitation, if only as a relay-station of a pipe line. Moreover, it is an
argument which, if it were valid, would apply equally to "median Iines" be-
tween opposite States as to which the Federal Republic has little objection.
But, quite apart from that, the argument is irrelevant to the present dispute,
There is no differencein "quality" between the North Sea coast of the Federal
Republic and the North Sea coast of the Kingdom of Denmark. Every single
part of both coast-lines, relevant for the drawing of the equidistance line, has in
principle the same potentialities for being used for the exploitation of the sea-
bed and subsoil.

Section 1. The Meaning ofthe Principal Rule Applicable
in the Present Case

126. The principal rule of international law applicabIe in the present case,
as has been pointed out, is the provision in Artic6, paragraph 2, whichreads :
"In the absence of agreement, and unless another boundary is justified
by special circumstances,the boundary shall be determined by application

of the principle of equidistance from the nearest points of the baseIines
from which the breadth of the territorial sea of each State is measured."
If thisprovision isinterpreted, as it must be, "in accordance with the ordinary
meaning to be given to the terms of the treaty in their context"', it can mean
only one thing: in the absence of agreement, the general rule requires the
boundary to be determined by application of the principle of equidistance,
but this general rulwillbe displaced if-and only if-it is show that another
boundary line is justified by specialcircumstances. In other words,theprovision
means that the equidistance line is the boundary unless a case of "special cir-
cumstances" within the meaning of the Convention is both shown to exist and
to justify a boundary other than the equidistance line.
1.27.In paragraphs 68-73 of the Mernorial, however, the Federal Republic
contends that the "special circumstances" clause is ta be "understood not so
much as a lirnited exception to a generaily applicabie rule, but more in the

the Law of Treaties (I.L.CReportst1966,iA/6309/Rev.mm1, p. 49).draftarticles on204 NORTH SEA CONTINENTAL SHELF

sense of an alternative of equal rank to the equidistance methoPl. In support
of this contention it isolates a single statement made in the debatinthe Inter-
national Law Commission in1953which hardly seems to bear the weight put
upon it by the Federal Republic. At the same time, it passes over the cIear
evidence in that debatethat the Commission adoptedthe equidistance principle
as the general rule and introduced the "special circumstances" clause by way
of an exception. Quite apart frorn the fact that the very words unlessand special
stamp the "special circumstances" clause with the hall-mark of an exception,
severai passages in the debate indicate that this clause was envisaged as an
exception to the equidistance principle (Yearbook, 1953, Vol. 1, pp.126-133).
For example, Mr. Sandstrom referred to the special circumstances clause as
covering "special cases where the application of the normal rule would lead to

manifest hardship" (italics added). Mr. Lauterpacht similarly spoke in terms
of providing for exceptions from the equidistance rule when its application
would lead to "unduehardship" (italics added). As to the author of the clause,
M. SpiropouIos, he also envisaged his proposa1 as leading to departures from
the equidistance rule only where its application would lead to "manifest un-
fairness".
128. Furthermore, the Federal Republic passes over completely the Com-
mission's clear and considered statement of its understanding of the relation
between the "equidistance rule" and the "special circumstancesclause" in the
commentary to its 1953 report. Almost every line of this commentary, the
relevant passage of which has already been brought to the Court's attention
(para. 67 of Chapter III of this Part) rebuts the contention now put for-

ward by the Federal Republic as to the "alternative" character and "equal
rank" of the "special circurnstances clause". This commentary, the Court will
recall, speaks of the equidistance principlas the general ruleand as the major
principle subject to "reasonable inodifcations necessitated by the special cir-
cumstances of the case" (italics added). The Federal Republic-perhaps
understandably-refers only to the heavily abbreviated commentary attached
to Article 72 of the Commission's final draft on the law of the sea as a whole.
Yet even this abbreviated commentary clearly visualizes the "special circum-
stances clause" as an exception: "Provision must be made for departures
necessitated by any exceptional configuration of the coast as wellas the presence
of islands or of navigable channels3." (Italics added.) True, the commentary
also observes: "This case may arise fairly often, so that the rule adopted is
fairly elastic3." (Italics added.) But that guarded observation can hardly be
said to modify the very clear impression of the equidistance principle in the
work of the Commission as the general rule and "the special circumstances"

clause as an exception to that rule.
129. Noris any differentimpression of therelation between the "equidistance
principle" and "special circumstances" clause given in the work of the Geneva
Conference itself. On the contrary, the statements of a number of delegations
make it clear that the "equidistance principle" was understood by the Confer-
ence to be the general rule to which "special circumstances" would constitute
an exception; e.g., Colombia, Italy, Venezuela (Oficial Records, Vol. VI, p. 94),
the Netherlands,United States (ibid., p. 95), and the United Kingdom (ibid.,
p. 96).

Mernorial,para. 69.
Yeurbook, 1953,Vol. II, p. 216, para. 82.
Ibid.1956, Vol. IIp. 300. COUNTER-MEMORIAL OF DENMARK 205

130. In short, the ordinary meaning of the words of Article 6 and the tra-
vauxpréparatoiresalike refute the contention that the "special circumstances
clause" is to be understood "more in the sense of an alternative of equal rank
to the equidistance rnethod". Moreover, if it were so interpreted, the effect
would belargely to denude it of legalcontent and destroy its value as a criterion

for resolving disputes concerning continental sheIfboundaries.
131. The Federal Republic further seeks in these paragraphs to undermine
the legal forceof the "equidistance principle" by so inflating the scope of the
"special circumstances" exception as almost to make the "equidistance prin-
ciple" the exception rather than the rule. Thus, in paragraph 70 it contends:

"'Special circumstances'are always present should the situation display
not inconsiderabledivergenciesfrom the normal case. The normal case, in
which the application of the equidistance rnethod leads to a just and
equitable apportionment, is a more or less straight coastline, so that the
areas of the shelf apportioned through the equidistance boundary more
or less correspond to the shorelines (façades)of the adjacent StatesShould
rhis not be the case, and should therefore no equitabIe and appropriate
solution result, the clause of the 'special circumstances' applies."(Italics
added.)
In this passage the Federal Republic, in effect,equatesthe principle of equi-
distance to the principle of a Iine drawn perpendicular to the coast; for where
the coast-line is "more or less straight", the equidistance rule necessarily gives

a boundary perpendicular to the coast. But the principle of a line perpendicular
to the coast wasconsidered bythe committee of expertsin 1953and deliberately
rejected in favour of the principle of equidistance (Yearbook, 1953, Vol. II,
p. 79).The Federal Republic'scontention is thus incompletecontradiction with
the legislative history of Article 6, as it is with the Commission's whole
concept of the equidistance principle as the "general rule" and "major prin-
ciple".
132. In any event, it is not very cIear twhat concIusion this contention is
supposed to Iead. In the area where the land-boundary between Denmark and
the Federal Republic rneets the sea the coast-line is "more or less straight",
so that even on the Federal Republic's view of the rnatter the equidistance
line would seem to be perfectly appropriate for this coast. So much so that,

in its Treaty of 9 June 1965with Denmark the Federal Republic did, in fact,
adopt the equidistance line for the delimitation of the continental shelf bound-
ary near the coast. Moreover, in the area also wherethe land-boundary between
the Netherlands and the Federal Republic rneets the sea, the coast-line is
similarly "more or less straight"; and similarly in its Treaty of 1 December
1964with the Netherlands the Federal Republic did, in fact, adopt the equi-
distance line for the delimitation of the continental shelf boundary. How and
upon what principle, it may be asked, does an equidistance boundary, perfectly
appropriate near the coast, cease to be so further out to sea when the coast-
line is "more or Iessstraight" and nogeographicalfactor otherthanthat coasf-
Iineinfluences mareria!Iythe course of theeqitidistanceline?

Section II. The North Sea not a "Special Circumstance"or "Special Case"

133. At the very heart of the case presented by the Federal Republic in the
Memorial is the thesis that the North Sea is in itself a "special circumstance"

or "special case" suchthat itcannot bedealt with "by theapplication of methods
developed for drawingmaritime boundaries in normal geographical situations"206 NORTH SEA CONTINENTAL SHELF
(para. 41 (cl of the ~ernorial). This thesis is introduced in Part 1 (Chap. 1,
para. 8) in a comparativelymodest forrn:

"Yet it is necessary to point out already at this stage thgt the North
Sea represents a special casein that, on account of its relativeshaliowness,
its subrnarine areas constitute a single continental shelf which rnust be
divided up among the surrounding coastal States in its entirety. In this
respect, the North Sea is different from other cases of delimitation of
continental shelf areas where the continental shelfconstitutes but a narrow
belt off the coast."
In Part II, however, the thesis assumes a much larger form. Thus, in para-
graph 41 of this Part Cp.39, supra)the Federal Republic States:

"A very special situation arises when-as in the case of the North Sea-
a continental sheifwhich is surroundedby several littoral States has to be
dividedamong these States. Here a problem suigeneris arises which cannot
be solved satisfactorily by the application of methods developed for
drawing maritime boundaries in normal geographicalsituations." (Italics
in the Memorial.)
And later, in paragraph 72, the Federal Republic boldly asserts the claim
that continental shelf areas like that in the North Sea constitute "special

circumstances" within the meaning of Article 6of the Convention (p.71,supra):
"Another typical category of special coastal configuration under the
heading of 'special circumstances' are guifs,bays, and shallow seas sur-
rounded by land. The fact that these geographicalsituations cal1for special
solutions, in order to amve at an equitable apportionment of the joint
seabed and subsoil of such waters, has been recognized in the literature
on the subject at an early date." (Italics in the Memorial.)
134. Characteristicaliy, the only authority for its thesis cbyethe Federal

Republic in either paragraph 41 or paragraph 72 of the Memorial is three pas-
sagesfrom writers published atan early stagein the development of the doctrine
of the continental shelf before the "equidistance principle-speciaI circum-
stances rule" had seenthe light of day in the Commission. The reason, nodoubt,
is thatno support can be found in the report of the cornmittee of experts, the
work of the Commission or the records of the Geneva Conference for the
view that shallow seas, as such, constitute a "special circumstance" or a
"special case". These three bodies as has already been said in paragraph 120
above, were perfectly well aware of the existence of shallow seas like the Per-
sian Gulf, Baltic and North Sea. Indeed, one of the points singled out for
mention in the Commission's report in 1953 was that shallow seas like the
Persian Gulf should be considered as failing within the concept of the con-
tinental shelf. If those bodies had considered shallow seas to constitute a
special case outside the "application of methods developed for drawing mari-

time boundaries in normal geographical situations"', they would certainly
have so provided. Equally, it seemshighly probable that the views of the three
writers in question have evolved somewhat since 1953under the influence of
the work of the Commission and the Geneva Conference. This we know for
a fact in the case of Richard Young, to whose article in the ArnericanJournal
of InternationaILawfor 1951 the Federal Republic gives particular prominence
in paragraphs 41 and 72. A recent article published by this writer in the 1965
American Journalof InternationalLaw and entitled "Off-shore Clairns and

Memorial, para. 41. COUN?ER-MEMORIAL OF DENMARK 207

Problems in the North Sea" goes in a quite opposite direction to the Federal
Republic. After mentioning that there now appears to be a consensus between
the North Sea States regarding the territorial sea and fisheries,the article pro-
ceeds:

"There appears to be asimilar consensus in principle with respect to the
continental shelf: none of the five North Sea States having potentially
large interests in submarine resources has failed to recognize the exclusive
appurtenance of such resources to the coastal state. Nor does it seemlikely
that any of them will challenge seriously the equity in general of dividing
such resources by equidistant boundary lines in the absence of special
agreement otherwise, although West Germany in particular may seek
some readjustment through such agreements. Even Norway, with its
reluctance to accept the Shelf Convention, seem prepared to accept these
principles as a guide.
This consensus should provide a sound foundation for the working out

in practice of various particular problems concerning the delimitation and
control of off-shore areas. niese problems may be said to beof two general
kinds :first,those relating direcdy to theexploitation ofsubmarineresources
in the North Sea, inciuding the delimitation of the respective national
areas and the efficient development of resources found; and second,
problems arisingfrom conflictsamong differentuses of the same sea areas.
The first group are chieflytechnical in nature and, under the circurnstances
existing in theNorth Sea, should not present great difficulties.Thus the
construction of median lines should not involve any issues of pnnciple:
the general acceptance of similar rulesfor baselinesprovides a substantiaIiy
uniform line of departure, and the general absence of important offshore
islands beyond the coastal fringeeliminates one potential source of contro-
versy. The region is perhaps as simple a situatiio nnferms of technical
problems ofdelimitation ascanbefound inany area wheresa many diferent
statw are involvedl." (Italics added.)

There certainly seems to be no trace here of the idea that the North Sea,
as such, is a "special case" or "special circumstance" simply by reason of its
being a shallow sea on which a number of States have afrontage.
135. The FederaI Republic, it is true, also devotes a whole chapter (Chap.
III of Part II) to what it terms "The Special Case of the North Sea". But in
that Chapter the Federal Republic sets out to construct a more general case
to justify the substitution oa "sector" for an equidistance boundary; and it

will therefore be more convenient to deal with those arguments separately in
the next Chapter of this Part. Here it suffices to point out that the Federal
Republic's general thesis that, by reason of its being a shallow sea on which
a number of States have a frontage, the North Sea is, as such, a "special cir-
cumstance", is without any foundation whatever.

A.J.I.L.,Vol.59 (1965),pp. 516-517. NORTH SEA CONTINENTAL SHELF

THE SPECIAL CIRCUMSTANCES EXCEPTION AND THE PEDERAL
REPUBLIC'S SECïORAL CLAIM

Section 1.The Absenceof any "Special Circumstances"

136. If the Government of Denmark is correct in its submission that the
principles and rules of international law applicable as between the Parties are
those contained in Article 6,paragraph 2, of the Continental ShelfConvention,
it follows that in order to arrive at a delimitation other than that which results
from the application of the equidistance pnnciple, the Federal Republic must
invoke the exception of "special circumstances justifying another boundary
line". In the Memorial, however, it proceeds in a quite differentmanner.

137. The tactics adopted by the Federal Republic, as pointed out in the
previous Chapters of this Part, are to try to undermine the value of the equi-
distance principle as a general rulin order to open the way for its request for
an "equitable apportionment" not under the principles of the Geneva Con-
vention but on a thinly disguised basis of ex aequo et bono. In character with
these tactics, neither the Federal Republic's "conclusions" regarding the North
Sea continental shelfon page 89, supra, of the Memorial nor its final "submis-
sions" on page 91, supra, make any mention of the exception of "special
circumstances" provided for in Article 6 of the Continental Shelf Convention.
Nor does the Federal Republic anywhere inthe Memorial expressly invoke the
exception of special circumstances as one of the "principles or rules of inter-
national law" applicable as between the Parties under the terms of Article 1 of
the Compromis.

138, The reason why the Federal Republicshows itself so averseto admitting
the authority of the equidistance principle as the general rule and so shy of
invoking the exception of special circumstances is, no doubt, that it does not
think that ifsowncase can be brought withinthe scopeof the exceptionof special
circumsfancesenvisagedin Arlicle 6 of the Continental Shelf Convention.Other-
wise, it is dificult to see why the Federal Republic should have gone to such
Jengthsin trying to question the now generallyaccepted authority of the equi-
distance principle as the principal rule instead of setting out to persuade the
Court, ifit can, that in the case of the delimitation of the North Seacontinental
shelf between Denmark and the Federal Republic "another boundary is
justified by special circumstances" wifhinthe ~neaningof the Convention.

139. Scattered through the Mernorial, it is true, are to be found references
to the North Sea as a specialcase (paras. 8 and 75) or a speciaI problem (para.
77). In one place (para. 72) the Federal Republiceven goes so far asto speak of
"gul/s, bays, andshallow sem surrounded by land" (italics in the Memorial) as:
"another typical category of special coastal configuration under the heading
of 'specialcircurnstances'"(italics added).
But the thesis that the shallow North Sea is as such a "special circumstance"
within the meaning of the Convention is one which, as already pointed out in
the previous Chapter, is entirely lacking in foundation. Moreover, it would
seem to demand some courage to maintain this thesis in face of the facts that:

(a) the United Kingdom, Nonvay, Denmark, the Netherlands and Belgium
have al1treatedthe delimitation of the continental shelf beneath the North Seaasaperfectly normalcasefor theapplication of theequidistanceprinciple;
(b) the Federal Republic itseif has treated the shallow Baltic Sea as a normal
case for the application of the equidistance principle; and
(cj the Federal Republic never suggested at the Geneva Conference or in its

Continental Shelf Proclamation of 20 January 1964or in the Exposé des
Motifs of the Law giving effectto the Proclamation or in its negotiations
with Denmark that, being a shaiiow sea, the North Sea is a special case.
140. True, in the second part of paragraph 72 the Federal RepubIic does
introduce the question of "gulfs, bays, or other major indentations of the
coastline" where "one or even both seaward sides belong to a neighbour State"
and this under the general heading "The 'Special Circumstances'in Article 6
of the Continental Sheif Convention". It maintains that this case "corresponds
to the problem of islands which lie before the coast, but beiong to another
State"; and observes that in both cases "the drawing of a boundary line in

application of the equidistance method rnust, by geometrical necessity,cut off
the State from the sea". It goes on to illustrate the case of "gulfs, bays or other
major indentations" by three small diagrams (figs. 16, 17 and 18),the last of
which purports to be a representation of the configuration of the Danish-
German-Netherlands coast-line "simplified to the base-line of the territorial
sea". Then it baldly asserts:
"It is obvious that a division of the subrnarine areas between the three
States made on these lines cannot be considered as an equitable result.
Geographical situations of such a kind, affecting the course of the equi-

distance line to such an extent, represent a special configuration of the
coast which excludes the application of the equidistance method."
The Federal Republic makes no real atternpt, however, to examine the
actual configuration of the Danish-German-Netherlands coast-line in order to
establish on what geographical grounds this coast-line is to be considered "a
special configuration of the coast" amounting to a special circumstance within
the rneaning of the Continental Shelf Convention. On the contrary, after only
a most general reference to "gulfs, bays or other major indentations of the
coast-line" itprociaims that equidistance lines drawn fromthe Danish-German
and Netherlands-German boundaries givean inequitable result for the Federal

Republic and for shat reason the Court is here confronted with a "special
configuration of the coast". This, in the viewof the Danish Government, puts ,
the cart before the horse.
141. The "special circumstances" clause in Article 6, paragraph 2, of the
Convention, as already pointed out in the previous Chapter of this Part, is
undoubtedly an exception to the general rule of delimitation by application
of the equidistance principle, Since the Federal Republic has not invoked this
exception in its submissions, Denmark doesnot consider that she is called
upon to dwell at length upon the question whether the configuration of the
Danish-German-Netherlands coast-line is such as couId be considered a

"special circumsbnce" within the meaning of Article 6,paragraph 2. Neverthe-
less, there are certain observations which she cannot refrain from making in
the light of the contentions in paragraph 72 of the Memorial.
142. First, the vignette of the coast-line found in figure 1of the Memorial
gives a somewhat misleading impression ofthe bend in the Gerrnan coast-Iine
at the centre of the diagram. The Federal Republic does not state whether it
regards this bend as an example of a "gulf" or of a "bay" or of a "major
indentation". But a glance at even a small-scale chart, or indeed at the small
map encfosed with this Counter-Memoria1,l immediately shows that this bend

See pocket insideback cover.210 NORTHSEA C0Nl"iNENTAL SHELF
in the coast-line is not a "bay" or a "major indentation" but rather a change
in the direction of the coast. The angle of this change of direction is approxi-
mately 100 degrees and, if the interveningarea of sea may properly be referred
to as a "gulf", it is a wide gulf with open shores, such as exists in many parts

of the world.
143. Secondly, on both sides of the wide gulf the shores are not mereIy
open but "more or less straight" with only the most normal srnall protrusions
in the coast-line.
144. Thirdly, fromthe angleofthe bend the coast-line ofthe Federal Republic

runs "more or less straight" for a distance of no less than 120 kilometres to
the north before it reaches the Danish frontier; and "more or less straight"
for a distance of no less than 135kilometres to the Westbefore it reaches the
Netherlands frontier.
145. Fourthly, no offshore island-ther than one forming a normal part
of the baseline of the coast-affects in any rnaterial way the geographical
situation with reference to the delimitation of the equidistance lines.(The
influence, if any, of Heligoland on the equidistance lines is altogether insig-
nificant.)

146.In short, the geographicalconfiguration with which the Court is con-
fronted in the present case is quite unremarkable and could hardly be less
"exceptional".
147. Again, the Danish Government must express its strong dissent frorn
the proposition in paragraph 72of the Memarial that the geographicalsituation
in the present case "corresponds to the problem of islands which lie before the
coast, but belong to another State". Neither the Danish Government nor the

Court is called upon in the present case to express any opinion as to what
should be the solution of that particular probIem under Article 6 of the Con-
vention. The Danish Government contents itself with remarking that the
Federal Republic's proposition is demonstrably untrue as a matter of pure
fact; and that it is also untrue even from the point of view of the boundaries
and areas of continental shelf which result from applying the equidistance
principle.
148. The standpoint of Denrnark is that she is entitled under international
law to consider the line of equidistance as constituting the boundary between
the continental shelves of Denmark and the Federal Republic wiess and until
it is established thar anorherbomdary lirreisjustified by specîal circumstances
wirhinthe meaning of the Convention.Denrnark, as explained in the previous

Chapter, founds her position, first, upon the provisions of Articles 1 and 2 of
the Convention under which a coastal State is in principle entitled to the area
of the continental shelf which is adjacent to its coast; and secondly upon the
principles and rules expressed in Article 6 of the Convention under which the
equidistance line forms the boundary unless another boundary line is justified
by special circumstances. In other words, Denmark maintains that the Federal
Republic is bound to respect the equidistance Iine as their mutual boundary
on the continental shelf unless and until the Federal Republic establishes both
that :
(a) there exists a "special circumstance" within the meaning of Article 6 of
the Convention;

and
(b) this "special circumstance" jusrifies another boundary line within the
meaning of that Article. WUNTER-MEMORiAL OF DENMARK 21 1
In the view of the Danish Government, the Memorial entirely fails to make
good either of these points.

149. Tfthe travauxpréparatoires of the Geneva Conventions and the actual
terms of Article 12 of the Territorial Sea Convention indicate that sorne not
purely geographical circurnstances, such as a histonc title, may constitute a
"special circumstance", it is only geographical configuration with which the'
Court is concerned in the present case. At any rate, the Memorial does not ap-
pear to envisage that in the present case any other forrn of "special circurn-

stance" cornes into account. True, in attempting to deprecjate the equidistance
principle and minimize the scope of its application the Federal Republic refers
in paragraph 70 to "special situations of a technical naturesuch as navigable
channels, cables, safety or defence requirements, protection of fisheries (fish
banks), indivisibledepositsof mineral oil or naturalgas-"; andin connection
with them cites selected passages from various writers. But, quite apart from
the fact that certain of these rnatters are the subject of specificsafeguards in the
Convention (cf. Arts. 3, 4 and 5), none of these so-called "special situations"
has been claimed by the Federal Republic in its subrnissions as constituting a
"special circumstance" for the purpose of the application of Article 6 of the
Convention. Nor has any of the other North Sea States found any of these
matters to constitute an obstacle to delimiting their boundaries strictly by ap-
plication ofthe principleof equidistance. In the case of "indivisible deposits of
mineral oil or natural gas", for example, the United Kingdom, Norway,
Denmark and the Netherlands have delimited their mutual boundaries strictly

on the basis of the equidistance principle, merely providing for consultation
in regard to the exploitation of resources bordering the boundary line. Ac-
cordingly, the Federal Republic's reference to these so-called "special situa-
tions" would seem to be entirely without relevance for the application of the
provisions of Article 6, paragraph 2,of the Convention in the present case.
150. Furthermore, the Federal Republic's numerous references to "island"
situations, which it illustrates with a vanety of figures (Nos4-7 and 11-15),
are equally irrelevant for the purposes of the present case. Islands situated out-

sidethe territorial seaplay no material role in the delimitation of thecontinental
shelf as between the Federal Republic and Denmark. The only relevant island
isHeIigoiand and, as stated in paragraph 145,the influenceofthis island, any,
on the equidistance line is altogether insignificant. Nor is there any disagree-
ment between the Parties regarding the islands offthe coast whichmay be taken
into account under international law as base-points for the delimitation of
their respective territorial seas, contiguous zones and continental shelves.
Indeed, so far from there having been any question raised in this partofthe
North Sea regarding islands as "a special circumstance", even a low-#ideeleva-
tion which does exercise a material influenceon the equidistanceline has been
used by the Federal Republic for delimiting its continental shelf without any
objection from the Nethedands (seefig. 2).1Thislow-tideelevation-the "Hohe
Riff9'-lies near the Gerrnan island of Borkum but off the mainland of the
Netherlands coast. Its presencethere causes, in the phrase used in paragraph 71
of the Mernorial, "dislocations in the apportionment" of the continental shelf;
and this dislocation operates in favour of the Federal Republic. The Federal

Government, it would seem, never for a moment imagined that the low-tide
elevation could be regarded as a "speciaI circumstance" for the purposes of
Article 6.

l See pocket insideback cover.212 NORTH SEA CONTINENTALSHELF

151. Since neither islands nor low-tide elevations play any rnaterial role in
the delimitation of the boundary of the continental shelf as between Denmark
and the Federal Republic, onfy rhegeographicalconfigurationof the base-lines
of the mainland const calls for consideration as a possible source of a "special
circumstance". But it has already ben demonstrated in paragraphs 142-146

above that there is absolutely no exceptional geographical configuration in
thispart of the North Seacoast whichcould possibly be regarded as constituting
"a special circurnstance" within the meaning of Article 6.
152. Even if the bend in the German coast could be regarded as a "special
circumstance", it still would notbe a "special circumstance" justifying another
bortndarylirre.TheDanish-German stretch of coast is,as previouslyemphasized,
quite ordinary, and "more or less straight"; and the continental shelf which
accrues to Denrnark under the equidistance principle is perfectly normal,
being the area which naturally appertains to the Danish coast. This can readily

be seenfrorn the smallrnap of the North Seareproduced in figure 3on page 213
opposite. This map picks outDanish territory by showing it shaded and depicts
the area of continental shelf accniing to it under the equidistance principle as
compared with the areas appurtenant to other stretches of the North Sea coast-
line. The Danish "share" of the North Sea.shelf is in no way abnormal jn rela-
tion to the Danish coast-line and its size cannot besaid to be unduly enlarged
by the protrusion of any promontory in the Danish coast. Denmark, in short,
gainsabsoluteiy nothing ai the expenseof rhe Federal Republicfromany unuslral
dispositionor configurationof Danish territory.
153. It followsthat what the Federal Republic isreally asking from the Court
in the present case is that it shouldlay down a principle which would require
Denmark, sirnply on considerations of ex aequo et bono, to transfer to the

Federal Republic part of the continental shelf which is adjacent and naturally
appertains to Denrnark. Indeed, it rnay be perrnissible to wonder whether in
1964it was considerations of ex aequoet bonoor a recentlyacquired knowledge
that thispart of the continental shelf may hold greater prospects of oil and gas
that led the Federal Republic to challenge the application of the equidistance
line. Be that as it may, there does not appear to be anybasis for suggestingthat
the International Law Commissionor theGenevaConferenceevercontemplated
that such a redistribution of areas of continental shelf could legitimately be
demanded under the provisions of Article 6.
154. The Federal Republic thus seems to overlook the fact that her neigh-
bour, Denmark, also has a clairn to a share of the continental shelf under inter-

national law which is identical to that of the Federal Republic in its legal basis
and validity. At any rate, it has provided no reason in the Memorial why this
neighbour State should be called upon to renounce part of its normal and
natural shelf area merely because the Federal Republic's own coast provides
a Iess satisfying basis for delimiting its continental shelf. There is, in the view
of the Danish Governrnent, no basis whatever in the Geneva Convention for
transferring legitimately claimed continental shelf areas from one State to an-
other merelybecausethelatter State isdissatisfiedwith itspart of thecontinental
shelf for reasons stemrningexclusivelyfrom its own coast.
155. In paragraph 72 of the Memorial, however, the Federal Republic seeks
to draw into the case between Denmark and the Federal Republic the equi-
distance boundary between the Netherlands and the Federal Republic. Yet
in the travauxpréparatoiresof the Convention there is not the slightest indica-

tion that it waseverenvisaged that a State might beable to combine a boundary
question vis-à-visone adjacent State with a boundary question vis-à-visanotherCOUNTER-MEMORIALOF DENMARK 213214 NORTH SEA CONTINENTAL SHELF
adjacent Stateand then maintain that "special circumstancesjustifying another
boundary line" exist which manifesdy do not exist in relation to either of these

adjacent States considered by itself. Furthermore, paragraph 2 of Article 6 of
the Convention, in contrast with the wording "two or more States" inpara-
graph 1 speaks only of cases "where the sarne continental sheIf is adjacent to
the territories oftwo adjacent States" (italics added); and thus clearly con-
templates onlyquestions of delimitation arising between two States alone.
Accordingly, in seeking to combine two separate boundary questions between
two different adjacent States, the Federal Republic passes completely outside
the limits of the "special circumstances" exception recognized in Article 6,
paragraph 2.
156. The Federal Republic's whole discussion of the "special circurnstances"
exception seems to assume that this clause opens up a general liberty to depart
from the rule of equidistance whenever a State finds that the application of the
general rule does not give a result which satisfies its aspirations. The special
circumstances clause was, however, formulatedand intended to be applied as

mle of law. It admits the possibility of a modification of the general nile on
the basis of geographical configuration only in cases where a particular coast-
line, by reasonof some exceptionalfeature,gives the State concemed an extent
of continental shelf abnormallyIargein relationto thegeneralconfigurationof
its coost. Then a correction is alIowedby the clause in favour of an adjacent
State whose continental shelf iscorrespondinglymadeabnormallysnrallinrela-
tion to the generalconfigurationofits coasf by rhat same exceptionalfeature.
In short, the modification to the general rule is aliowed by the clause owhen
it is equitableand just with regard to botlaStates concerned in relation to the
generalconfiguration of their respectivecoasts.nie clause neither contemplates
nor admits a State's being deprived of areas of continental shelf which are
naturally appurtenant to its coastand entirely normal in relation to the general
configuration of its coast; for to allow that would be to do inequity and in-
justice to the State so deprived.

Section II. The 'Lnadmissibilitoyf the Federal
Republic'sSectoral Claim
157. The second of the "conclusions" formulated by the Federal Republic
in paragraph 96 of the Memorial asserts:

"The most equitableapportionment of the continental shelf among the
coastal States would be s sectoral divisionbased on the breadthof their
coasralfrontagefacing the North Sea." (Italics added.)
This "conclusion" the Federal Republic seeks to support by an elaborate
argument in paragraphs 75-92based upon :(a) the allegedspecial characterof
the North Sea as a shallow sea surronndedby cmstal States; (b) aninterpret-
ation of the principle ofequality carefully tailored to rneetthe needs ofthe Fed-
eral Republic'sclaim; and (c)a supposed analogy with the Polar Sector theory.

158. The Danish Government has already amply demonstrated in the previ-
ous Chapter (paras. 133-135)that neither the geographical character of the
North Seanor the travauxpréparatoireo sf theContinental ShelfConvention nor
the practice of States provides any basis for treating the continental shelf be-
neath the North Sea as a "special case" or a "special circurnstance" for the
purposes of its delimitation under the principles contained in Article 6 of the
Convention.
159. The principle of the equality of States is, no doubt, a principle of high
importance. But it needs no argument to dernonstrate that the 'equality of COUNTER-MEMORIALOF DENMARK 215

States does not mean that every State must have an "equa1" area of land, or of
territorial sea, or of continental shelf; of that the facts of political geography are
sufficient proof. nie meaning and content of the principle of equality clearly
depend on thecontext in which it fallsto be applied. In the present context it can
only mean that each coastal State is entitled to the even-handedapplication of
the principlesand rulesof maritimeinternationalIowgoverningthe delimitarion
of a coasralState'srights in thesea areasaa'Jacenttu its cousis.These principles
and rules of maritime international law prescribe that:
(a) the sea areas, whether territorial sea, contiguous zone or continental shelf,
over which the coastal State rnay claim rights arethe areas of sea or con-

tinental shelf which are adjacent to, and thereby appertain to, its coast;
(b) for the purpose of determining these areas the "coast" of a State is con-
stituted by the basetines of the shore specifiedin the Territorial Sea Con-
vention; and
(c) in consequence, the boundaries of a coastal State's territorial sea, con-
tiguous zone or continental shelf are to be delirnited by reference to the
base-lines specifiedin the Territorial Sea Convention.
Denrnark, like every other State, is entitled to have her rights determined by
the application of these principles and rules. The Federal Republic, however,
while invoking the principle of equality of States, urges upon the Court the

adoption of a "sectoral" division of the North Sea continental shelf which, as
wilibeshown, deniesto Denmark her fundamental right to have her continental
shelf boundaries delirnited in accordance with the above-mentioned principIes
and rules of maritime international law applicable to other States. It is, there-
fore, evident that the Federal Republic's "sectoral" claimhas nothing whatever
to do with the principle of equality of States.
160. The Federal Republic illustrates its "sectoral" theory of the division of
theNorthSeacontinenta1 shelfin figure21 (p.85,supra,of the Memorial); and it
can beseenat oncefrom this figurethat the boundaries proposed by theFederal
Republic are not delimited by reference to the baselines of the coast but by

reference to the arcs of a circle artificially constructed by the Federal Republic
in the southern part of the North Sea. Figure 21, in other words, makes it
crystal clear that the theory urged upon the Court by the Federal Republic
denies to Denmark the delimitation of her continental shelf by reference to the
baselines of her coast in accordance with the established rules of international
law. Yet even in that sarne figure the continental shelf boundaries of Norway
and the United Kingdom are delimited by reference to the baselines of their
coasts, as indeed also is the boundary of the Netherlands vis-à-vis the United
Kingdom. It rnay, therefore, be asked upon what principle the equal appiica-
tion of these rulesof international law should be denied to Denmark.

161. In addition, the Federal Republic's sectoral theory bears every mark
of opportunism, artificiality and arbitrariness. At the negotiating stage, it is
tme, the Federal Republic did maintain that its continental shelf in the North
Sea, measured in relation to the length of its coast, should be comparable with
that of itsneighbours; and it also made a vague reference to a sector without
explaining what this might imply. But at that time it clearly assumed that in
this connection the Iength of the actualGerman coast in the North Sea was the
relevant one. That position it has now changed, substituting for its actual coast
an artificial line drawn a considerable distance to seawards even of the most
liberally estimated baseline of the coast lAnd this artificial line the Federal

l Memorial, para.78.216 NORTH SEA CONTINENTAL SBELP
Republic now puts forward as corresponding to its "façade" upon the North
Sea-a term and a concept alike wholly unknown to maritime international
law. Again, at the negotiating stage the Federal Republic, in seeking a basis for
justifying its claim, argued that paragraph 1 of Article 6, dealing with "op-

posite" States, because it precedes paragraph 2, dealing with "adjacent"
States, must be given priority so asto entitle the Federal Republic as of right
to a continental shelf boundary with the United Kingdom. This argument, in
itself altogether untenable and also having certain implications for the Federal
Republicwithrespect to theDanish-Netherlandsboundary, has beencompletely
abandoned in the Memorial. Instead, the Federal Republic now advances a
somewhat nebulous and dogmatic claim to be entitled to reach what it calls
the centre of the North Sea.
162. Whatever may be the legal value of the sector theory in Polar areas-a
matter quite outside the swpe of the present case-it is clear that no basis
for the application of the sector theory in the delimitation of the continental
shelf canbe found in State practice, the debatein the International Law Corn-
mission or in the records of the Geneva Conference. A memorandum prepared

by the United Nations Secretariat for the International Law Commission in
1950prior to its discussion of the continental shelf did, admittedly, contain a
mention of the sector principle (Yearbook, 1950,Vol. II, pp. 106-108).But this
only makes it al1the more significant that no mernber of the Commission, no
Government in its comrnents on the Commission's proposais, and no State
at the Geneva Conference ever adverted to the sector principle in discussing
the niles of international law which should govern the continental shelf.
No doubt, it is precisely because the Federal Republic is aware of the total
lack of any iegal basis for its sectoral claim that in the Memonal (para. 96) it
does not dare to put the sector theory before the Court as a "principIe of law"
but only as a rnethod of division which would result in "the most equitable
apportionment of the continental shelf". The Court, however, may conclude
that the absolute lack of any legalauthority in maritime lawfor the method of
divisionadvocated bytheFederalRepublic only servesto confirm that itsalleged
principle of the "just and equitable share" is indeed nothing more than a thinly
disguised demand for a delimitation of the continental shelf ex aequo et bono.

163. The Federal Republic's sectoral division of the North Sea is also highly
artificial and arbitrary. In order to giveits argument some air of plausibility the
Federal Republic recognizes that it must have a circular (or elliptical) area of
shaiiow sea and, by a lucky accident, it believesthat it has found such an area
in the North Sea which it illustrates in figure 21 of the MemoriaI. But this
figure shows that the Federal Republic's circular area is obtained only by a
highly selective and arbitrary process. The "circle" does not cover the whole
of the North Sea,nor evena clearlydefinedor separate part of that sea; it covers
only an arbitrarily chosen area in part of the North Sea. If regarded as depicting
the southern area of the North Sea shelf, the circletakes no account of the con-
figurations of the French, Belgian, south Netherlands or south English coasts;
nor does the arc even touch the Federal Republic's own coast or the Nonvegian
coast. In short, it is a circle constructed purely ad hoc for the purposes of the
argument and even with the best of good fortune the Federal Republic is un-
able to make the arc of its circle touch some of the relevant coasts.

164. Again, as the Court will see from figure 21,the "sectors" of the Federal
Republic's circle are not drawn with reference to the extrernities of the coasts
of the States concerned, but witlzreference to the equidistancelinesbetween their
territuries. Denmark's sector is depicted as starting at one end from a point COUNTER-MEMORiALOF DENMARK 21 7
on the median line agreed between Denmark and Norway in the Treaty of
8December 1965and at the other end from an arbitrary point on the equidis-
tance boundary near Sie coast established between Denmark and the Federal
Republic by the Treaty of 9 June 1965.The FederalRepublic'ssector starts at

one end from that same point on the Danish-German equidistance boundary
and at the other end from a similar point on the German-Nefherlands equidis-
tance boudarynear the shoreestablishedby the Treaty of 1Decernber 1964.The
Netherlandssectorstarts at oneendfrom thelast-mentionedpointon theGerman-
Netherlands equidistance boundary and at the other end from another point in
midsea on the median lineagreed betweenthe Netherlands and theUnited King-
dom bytheTreaty of 6October 1965.The Federal RepubIic, presumably in order
not to draw too rnuch attention to the geographically meaningless.character -
of its circle, does not complete the northern arc. But the impression is left in
figure 21 that comparable sectors attach to the Unite Kdingdombetween its
median line boundaries with the Netherlands and Norway and to Norwaybe-
tweenits median line boundaries with the United Kingdom and Denrnark. It is,
to say the least, curious that the hostility to the equidistance principle so fre-
quently evinced by the Federal Republic in the Mernorial should meIt away so
easily when this principle was found to be very convenient for the construction
of its sector claim.

165. The principat way in which the Federal Republic seeks to justify its
sectoral daim to a larger area of continental shelf is the proposition in para-
graph 78 of the Memorial that in the case of the North Sea the share of each
coastal State should be measured by the Iength of its North Sea coastline.
This proposition is expounded in that paragraph as follows:
"The degree of the geographic connection between the coast and the
submarine areas lying in front of it does not manifest itself by the length
of the coastline measured with al1its articulations, but by the breadth of
contact of the coast with the sea-the country's coastal frontage. The
degree of connection of the German coast with the submarine areas of
the North Sea would accordingly be measured by the linear distance

between Borkum and Sylt, two German islands imrnediately adjacent to
both end points of the Gerrnan wast between the Danish and Netherlands
continental territories. If the breadth of the German coast is evaluated in
this fashion, and the breadth of the Danishand Nethertands coasts were
to be ascertained in like fashion, then the shares of these countries would
stand in the ratio 6 : 9 : 9 respectively."
From this the Federal Republic concludes :
(a) the areas which accrue to the three States under the equidistance principle,
and which it gives as Denmark 61,500square kms., theNetherlands 61,800
square kms.and theFederalRepublic 23,600square kms.,aredisproportion-
ate to the ratiof their coastal frontages and, in consequence,inequitable;

(6) the areas which would accrue to the three States under the Federal Repub-
lic's sectoral division, and which it gives as the FederaI Republic 36,700
square krns., Denmark 53,900 square kms. and the Netherlands 56,300
square kms., do correspond roughly to the ratio of6 :9 : 9 and, in conse-
quence, constitute a ''just and equitable share".
166. The first and immediate objection to the Federal Republic's coastal
frontage-façade Iine-concept is that there is not the slightest basis for it in
State practice, the work of the International Law Commission or in the records
of the Geneva Conference. In support of it the Federal Republic, it is tme,
adduces statements by two writers; but these statements-at best only sug- 218 NORTH SM CONTINENTAL ÇHELF
gestions-were made in papers written before the International Law Com-

mission had even begun its study of the continental shelf. Nor is it clear that
even these writers had in mind "coastal frontage" in the form of the "façade"
Iinepropounded by the Federal Republic. Be that as it may, the façade concept
was never suggested or adverted to in the International Law Commission or
by any government in its comments upon the Commission's proposals or by
any State at the Geneva Conference; nor does it appear to have received any
mention in State practice other than in the argument of the Federal Republic
in the present dispute. The reason is obvious enough. The legal concept and
definition of a coast for the purposes of international law is weUestablished:
it is the baselineof the coast, i.e., the low-waterlinalong the open coast or
straight lines where these are admitted in the case of island fringes, bays, etc.
Moreover,international law places specificlirnits upon the indentations which
may be regarded as bays for this purpose and upon thelength of the lines which
may be drawn across bays. The Federal Republic's concept of a "façade"
line and the particular façade line between Borkum and Sylt which it claims

for its coast violate both the established legal concept of the coast and the
specific niles applicable thereto. In short, the Federal Republic invokes a
novel concept of the coast wmpletely outside anything contemplated either
by the International Law Commission or by States at the Geneva Conference.
167. The "coastal frontageW-"façadeline" concept is, in fact, nothing but
an artiiicial construction devised for the purpose of enabling the Federal
Republic to escapealike from the consequences of its own geography and from
the normal application of the relevant rules of maritime international law.

Furthermore, as already pointed out, even the "façade line"-the Borkum-
Syltline-is not enough for the Federal Republic's purpose; for it is impossible
to make the arc of the Federal Republic's magic circle corne anywhere near
the Borkum-Sylt line. In consequence, in order to give its sector even the sem-
blance of plausibility,the Federal Republic has to construct notwith reference
to the Borkum-Sylt line but to a purely fictional Iine joining selected points
on its two near-shore continentaI shelf boundaries established in treaties
respectively with Denmark and the Netherlands. Thus, the base of the Federal
Republic's sector is still further divorced from the established concept of a
coast in international law.
168. In any case, even if the Federal Republic's "coastal frontage" concept
were to be treated as in some way relevant, it would seem essential that the

comparisons should be made between continental shelf shares within the same
sea areas. Yet in measuring the size of the Danish North Sea continental
shelf, the Memorial has included the area of the Danish sheif which lies to
the North of Denrnark after the coast veers sharply to the east; and this area
,is outside the North Sea as defined in the:North Sea Fisheries Convention of
1882 which specified the line between Hanstholm in Denmark and Lindesnæs
in Norway as the easterly limit of the North Sea.
169. Moreover, the Danish Govemment has been unable to follow the
basis upon which the areas resulting from the Federal Republic's sectoral
division are estimated in the Memorial to correspond to the ratios of the

breadths of the coastal frontages. The area, it would seern, should be appre-
ciably smaller than that indicated in the Memorial.
170. As to the sectors, by no means al1 the sector lines are radii of the
WderaI Republic's circle running inwards to its tme centre. The Danish-
Norwegian, United Kingdom-Nonvegian and Netherlands-United Kingdom
lines are orthodox equidistance lines drawn in accordance with the Geneva COUNTER-MEMORIALOF DENMARK 219

Convention. Only the Federal Republic's sector boundaries with Denrnark
and the Netherlands appear in figure 21 as radial lines running to the actual
centre of the circle. The sectoral lines depicted in figur2e1 therefore demon-
stratethe special treatment meted out by the Federal Republic to itseif and the
unequal treatment accorded by it both to Denrnark and the Netherlands as

against other North Sea States in the drawing of the "sectoral" boundaries.
171. Another thing which figure 21 showsclearly is that the Federal Repub-
lic has no valid reason for claiming that it is entitled to a continental shelf
reaching to the centre of the North Sea. The Federal Republic's magic circle,
if it touches the coastsof Denmark, the Netherlands and the United Kingdom,
falis somewhat short of the Norwegian coast and very far short of that of the
Federal Republic. This indicates that, while some of the other North Sea
States may be States whose wasts actuaily border upon the central part of
the North Sea, the Federal Republic's coast is situated in an extension of the

North Sea to the southeast, as are also the coasts of Belgium and France in
an extension to the south-west. The result is that the Federal Republic's coast,
like those of Belgiumand France, ismuch more distant from the central part of
the North Sea.In other words, while the distances from the centre of the magic
circle to the coasts of Denmark, the Netherlands and the United Kingdom
are identical, the distance to that centrefrom any point on theFederal Republic's
coast is considerably greater. In consequence, it is neither surprising nor in-
equitable nor unjust that the Federal Republic's continental shelf should not
reach out to the place which it speaks of as the centre of the North Sea.
172. In addition, both the Federal Republic's addiction to the supposed

principle of "the just and equitable share" and its enthusiasm for a sectoral
division of the continental shelf as an application of that "principle" seem to
be capriciously confined to the coastal States of the south-eastern part of the
North Sea. Belgium and France areboth "North Sea States" as defined in the
North Sea Convention of 1882,and both havelimited frontages on the southern
part of the North Sea.In sorne ways, moreover, their positions are analogous
to that of the Federal Republic. Yet neither in figure 21 nor in its exposition
of the sectoral theory in paragraphs 84-92does the Federal Republic find any
room for these States in its "equitable apportionment of the North Sea".
This highly seIectiveapplication of the alleged principle of the "just and equi-
table share" and of the concept of a "sectoral division" of the continental
shelf serves, once more, to show that it is natdelimitation in accordance with
any principle or rule of international law for which the Memorial asks but a
delimitation simply ex aequo et bono in accordance with the aspirationsof
the Federal Republic.

173. In the final analysis, it is an insuperable objection to the Federal
Republic's alleged principle of the "just and equitable share" and to its pro-
posed "sectoral division" of part of the North Sea that both that alleged
principle and that method of division are in total conflict with the established
principles and niles of international lawgoverning the delimitation of maritime
areas. Thus, they misconceive the very nature and the operation of these
principles and rules, which are based upon the doctrine la ferredomine lumer
and not vice versa. The rules of international law in this sphere take the coast
as their starting point, andnot the-in any case imaginary-middle of the sea.
These principles and des do not have as their object to share out or distribute
the sea, seabed or subsoil by sector or otherwise. They have as their object

to delimit in space the extent to which the sovereignty ofa State over its land
finds continuation in sovereign rights relating to the sea areas adjacent to its220 NORTH SEA CONTINENTAL SHELF

land. Moreover, at the root of these rules is the concept that the sovereign
rights ofa State over sea areas are, in principle, limited in space to areas al1
points of which are nearer to its coast than to that of any other State, because
it is these areas which are truly "adjacent" to its land.

174.The Federal Republic's alleged principle and sectoral method of
division depart alikefrom these fundamentalprinciples of maritimeinternation-
al law and from the detailed des regarding the delimitation of sea boundaries
in which they have their application. Accordingly, in the view of the Danish
Govemment, neither the aiieged principle of the just and equitable sharenor
its particular application in the Federal Republic's "sectoral" division possess
the characteristicsof a "principle or rule of international law" within the
meaning of Article 1 of the Compromis. COUNTER-MEMORIAL OF DENMARK

PART III. SUBlMISSIONS

Considering that, as noted in the Compromis, disagreement exists between
the Parties which could not be settIed by detailed negotiations, regarding the
further course of the boundary beyond the partial boundary determined by
I
the Convention of 9 June 1965;
Considering that under the terms of Article 1,paragraph 1,of the Compromis
the task entrusted to the Court is not to formulate a basis for the delimitation
of the continental shelf in the North Seaas between the Partiesaequo et bono,
but to decide whatprinciples and rulesof internaiionallaw areapplicable to the
delimitation as between the Parties of the areas of the continental shelf in the
North Sea whichappertain to eachof thembeyond the partial boundary, deter-
mined by the above-mentioned Convention of 9 June 1965;

In viewof the facts and argumentspresented in Parts and II of this Counter-
Mernorial,
May it please the Court to adjudge and declare:
1. The delimitation as between the Parties of the said areas of the continental
shelf in the North Sea is governed by the principles and rules of international

law which are expressed in Article 6,paragraph 2, of the Geneva Convention
of 1958on the Continental Shelf.
2. The Parties being in disagreement, unless another boundary is justified
by special circumstances, the boundary between them isto be determined by
application of the principle of equidistance frorn the nearest points of the
baselines frorn which thebreadth of the territorial sea ofeachState ismeasured.
3. Specialcircumstances whichjustify another boundary Iinenot having been

established, the boundary between the Parties is to be determined by application
of the principle of equidistance indicated in the preceding submission.

20 February 1968.

(signed) Bent JAWBSEN

Barrister at the Supreme Court of Denmark
Agentfor the Government
ofthe Kingdom
of Denmurk. COUNTER-MEMORLAL OF DENMARK

PART TV. ANNEXES TO THE COUNTER-MEMORIAL
SUBMIïTED BY THE GOVERNMENTOF
THE KINGDOM OF DENMARK

Annex 1

CONVENTIO ONNTHE CONTINENT S HELF

The StatesParties to this Convention
Have agreed as foUows:-

Article 1
For the purpose of these articles, the term "continental shelf" is used as
referring (a) to the seabed and subsoil of the submarine areas adjacent to the
Coast but outside the area of the territorial sea, to a depth of 200 metres or,
beyond that lirnit, to whethe depth of the superjacent waters admits of the
exploitation of the natural resources of the said ar(b)to the seabed and

subsoilof similar submarine areas adjacent to the coasts of islands.
Article 2
1. The coastal State exercises over the continental shelf sovereign rights for
the purpose of expIoring it and exploiting its natural resources.

2. The rights referred to in paragraphof this article are exclusive in the
sense that if the coastal State does not explore the continentalshelfor exploit
its natural resources, no one may undertake these activioremake a claim
to the continental shelf, without the expressconsent of the cState.
3. The rights of the coastal State over the continental shelf do not depend
on occupation, effective or notionor,on any expressproclamation.
4. The natural resources referred to in these articles consist of the mineral
and other non-living resources of the sea-bed and subsoil together with living

organisms belonging to sedentary species that is to Say, organisms which, at
the harvestable stage, either are immobilorunder the seabed or are unable
to move except in constant physical contact with the seabed or the subsoil.
Article3

The rights of the coastal State over the continensheIfdo not afïect the
legal status of the superjacent waterashigh seas, or that of the airspace
above those waters. '
Article 4

Subject to its right to take reasonable measures the exploration of the
continental shelf and the exploitation of its naturaI resources, the coastal State
may not irnpede the laying or maintenance of subrnarine cables or pipe lines
on the continental shelf.
Article5

1. The exploration of the continental shelf and the exploitation of its
natural resources must not result in any unjustifiable interference with navi-
gation, fishing or the conservation of the living resources of the sea, nor result
in any interference with fundamental oceanographic or other scientificresearch
carried out with the intention of open publication.224 NORTH SEA CONTINENTAL SHELF
2. Subject to the provisions of paragraphs 1 and 6of thisarticle, the coastal

State is entitledtoconstruct and maintain or operate on the continental shelf
instalIations and other devicesnecessary for itsexploration and the exploitation
of its natural resources, and to establish safetyzones around such installations
and devicesand to take in those zonesmeasures necessary for their protection.
3. The safety zones referred to in paragraph 2 of this article rnay extend to
a distance of 500rnetres around the installations and other deviceswhich have
been erected, rneasured from each point of their outer edge. Ships of al1
nationalities must respect these safety zones.

4. Such installations and devices, though under the jurisdiction of the
coastal State, do not possess the status of islands. They have no territorial
sea of their own, and..their:presence does not affect the delimitation of the
territorial sea of the coastal State.
5. Due notice must be given of the construction of any such installations,
and permanent means for giving warning of their presence must be maintained.
Any installations which are abandoned or disused must be entirely removed.
6. Neither the installations or devices, nor the safety zones around them,

may be established where interference rnay be caused to the use of recognized
sea lanes essential to international navigation.
7. The coastal State is obliged to undertake, in the safety zones, all appro-
priate measures for the protection of the living resources of the sea from
harrnful agents.
8. The consent of the coastal State shaii be obtained in respect of any
research concerning the continental sheIf and undertaken there. Nevertheless,
the coastal State shall not normally withhold its consent if the request is sub-

mitted by a qualified institution with a view to pureIy scientificresearch into
the physical or biological characteristics of the continental shelf, subject to
the proviso that the coastal State shall have the right, if it so desires, to par-
ticipate or to be represented in the research, and that in any event the results
shall be published.

Article 6
1. Where the same continental shelf is adjacent tu the territories oftwo
or more States whose coasts are opposite each other, the boundary of the
continental she1fappertaining to such States shall be deterrnined by agreement
between them. In the absence of agreement, and unless another boundary
lineis justified by special circumstances,the boundary is the median line, every

point of which is equidistant from the nearest points of the baselines from
which the breadth of the territorial sea of each State is measured.
2. Where the same continental sheif is adjacent to the territories of two
adjacent States, the boundary of the continental shelf shall be determined
by agreement between them. In the absence of agreement, and unless another
boundary line is justified by special circumstances, the boundary shaii be
deterrnined by application of the principfe of equidistance from the nearest
points of the baselines from which the breadth of the territorial sea of each
State is rneasured.

3. In delimiting the boundaries of the continental shelf, any lines which
are drawn inaccordance with the principles set out in paragraphs 1 and 2 of
this article should be definedwjth reference to charts and geographical features
as they exist at a particular date, and reference shoiild be made to fmed per-
manent identifiablepoints on the land. COUNTER-MEMORIAL OF DENMARK 225

Article 7

The provisions of these articles shall not prejudice the right of the coastal
State to exploit the subsoil by means of tunnelling irrespective of the depth
of water above the subsoil.
Article 8

This Convention shall, until 31 October 1958, be open for signature by
al1States Members of the United Nations or of any of the specialized agencies,
and by any other State invited by the General Assembly of the United Nations
to become a Party to the Convention.

Article 9
This Convention is subject to ratification. The instruments of ratification
shall be deposited with the Secretary-General of the United Nations.

Article 10
This Convention shall be open for accession by any States belonging to
any of the categories mentioned in article 8.The instruments of accession
shall be deposited with the Secretary-General of the United Nations.

Article 11
I 1. This Convention shall come into force on the thirtieth day following the
date of deposit of the twenty-second instrument of ratification or accession

with the Secretary-General of the United Nations.
2. For each State ratifying or acceding to the Convention after the deposit
of the twenty-second instrument of ratification or accession, the Convention
shall enter into force on the thirtieth day after deposit by such State of its
instrument of ratification or accession.

Article 12
1. At the time of signature, ratilkation or accession, any State may make
reservations to articles of the Convention other than to articles 1to 3 inclusive.
2. Any Contracting State making a reservation in accordance with the

preceding paragraph may at any time withdraw the reservation by a corn-
munication to that effect addressed to the Secretary-General of the United
Nations.
Article 13

1. After the expiration of a period of five years from the date on which
this Convention shall enter into force, a request for the revision of this Con-
vention may be made at any time by any Contracting Party by means of a
notification in writing addressed to the Secretau-General of the United
Nations.
2. The General Assembly of the United Nations shall decide upon the

steps, if any, to be taken in respect of such request.
Article 14

The Secretary-General of the United Nations shall inforrn ali States Members
of the United Nations and the other States referred to in article 8:
(a) Of signatures to this Convention. and of the deposit of instruments of
ratification or accession, in accordance with articles 8, 9 and 10.
(b) Of the date on which this Convention will come into force, in accordance
with article 11.226 NORTH SEA CONTINENTAL SHELF
(c) Of requests for revision in accordance with article 13.
(d) Of reservations to this Convention in accordance with article 12.

Article 15

The original of this Convention, of which the Chinese, English, French,
Russian and Spanish texts are equally authentic, shall be deposited with the
Secretary-General of the United Nations, who shall send certified copies
thereof to al1States referred to in article 8.
In witness whereof, the undersigned Plenipotentiaries, being dulyauthorised
thereto by their respective Governrnents, have signed this Convention.
Done at Geneva, this twenty-ninth day of April one thousand nine hundred
and fifty-eight. COUNTER-MEMORIALOFDENMARK

Annex2

Dates of signatureDates prior to the entry
into force of the Con-
refer to the dayof de-
positing the instruments
of ratification or acces-
sion; dates after June
1964referto theday when
the Conventiowentinto
forceforthesaiState.

Afghanistan -- 30.10 1958 1
Albania 6.1.1965
I
Argentina 29.4 1958 1

Bolivia 17.101958 1
Bulgaria 1 31.8 1962

ByelorussianSoviet
Socialist Republic 31.10 1958 1 27.2 1961
Carnbodia 18.31960
I
Canada 29.4 1958 1

China(Taiwan) 29.4 1958 1
Colombia 29.4 1958 1 8.1 1962

CostaRica 29.4 1958 1
Cuba 29.4 1958 i

Czechoslovakia 31.101958 1 31.8 1961
Denrnark 29.4 1958 1 12.61963
-
Dominican Republic 29.4 1958 1 10.91964228 NORTH SEA CONTINF,SHELF

Ecuador 31.10 1958 1
Federal Republic
ofGermany 30.10 1958

Finland 27.10 1958 1 18.31965
France 1 14.7 1965
Ghana 29.4 1958 1

Guatemala 29.4 1958 1 27.11 1961

Iceland 29.4 1958 1
Indonesia 8.51958 1

Iran 28.5 1958 1
Irish Republic 2.101958 1

Israel 29.4 1958 1 6.9 1961
Jamaica 1 7.11 1965
Lebanon

Liberia 27.5 1958 1
Madagascar 1 31.7 1962

MaIawi 1 3.12 1965
Malaysia 1 21.12 1960

Malta I 21.9 1964
Mexico 1.9 1966
I
Nepal 29.4 1958 1
Netherlands 31-101958 1 20.3 1966

New Zealand 29.10 1958 1 17.2 1965
Pakistan 31.10 1958 i
Panama 2.5 1958 1

Poland 31.10 1958 1 29.6 1962

Portugal 28.101958 1 8.1 1963
Romania 1 12.12 1961

Senegal 1 25.4 1961SierraLeone I 25.121966
Sweden 1 1. 7 1966

Switzerland 22.10 1958 1 17. 6 1966
Thailand 29,4 1958 1

Tunisia 30.10 1958 1
Uganda 1 14.101964
UkranianSoviet
SocialistRepublic 31.101958 ) 12. 1 1961

The Unionof SouthAfrica i 9. 4 1963
Union of Soviet
SocialiRepublics 31.101958 1 22.111960

UnitedKingdom 9. 9 1958 1 11. 5 1964
United StatofAmerica 15.91958 1 12. 4 1961

Umgua~ 29. 4 1958 1
Venezuela 30.101958 1 15.8 1961
- -- -
Yugoslavia 29. 4 1958 1 27. 2 1966 NORTH SEACONTINENTAL SHELF

RESERVATIONS and DE~LARAT~O NELATIN0 TO THE CONVENTION ON THE
CONTINENT SAHELFAND OBJECTION TO RESERVATIO AND DECLARATIONS

A. Reservationsand Declarations in Connection with the Signing of the

Convention

When signing the Convention on the Continental Shelf on 28 May 1958,
30 October 1958,and 30 October 1958,respectively,reservations were made by
Iran and Venezuela while the Federal Republic of Germany made a declara-
tion.
1. Inthe Iranianreservation it is stat"...Article4: With respecttothe
phrase 'the Coastal State may not impede the laying or maintenance of sub-
marine cables or pipe-lines on the continentalshelf', the Iranian Govemment
reserves itsright to allowornot to allowthe layingor maintenance ofsubmarine
cables or pipe-lines on its continentalshelf; Article6: with respect to the phrase
'and unless another boundary lineisjustified by specialcircumstances' included
in paragraphs 1 and 2 of this article, the Iranian Government accepts this

phrase on the understanding that one method of determining the boundary
line in special circumstances would be that of rneasurement from the high
water mark."
2. Venezuela:".. .declares with reference to Art6cthat there are special
circumstances to be taken into consideration in the following areas: the Gulf
of Paria, in so far as the boundary is not determibydexisting agreements,
and in zones adjacent thereto; the area between the Coastof Venezuela and the
island of Aruba;and the Gulf of Venezuela."
3.TheFederalRepublicof Germny :". ..declareswith referenceto Article 5,
paragraph 1, of the Convention on the Continental Shelf that in the opinion

of the Federal Republic of Gerrnany Article 5, paragraph 1, guarantees the
exercise of fishing rights (Fischerei) in the waters above the continental shelf
in the manner hitherto generally in practice."

B. Reservationsand Declarations in Connection with Ratification of or
Accessionto the Convention

Upon ratification of or accession to the Convention on the Continental
Sheifthe Governments of Venezuela,Franceand Yugoslavia madereservations
and/or declarations.
1. The instrument of ratificatbynthe Government of Venezuela(deposited
on 15August 1961)stipulates that the ratification is subject to express reserva-
tion in respecofArticle 6 of the said convention.

2. The instrument of accession by the Government of the FrenchRepublic
(deposited on 14 June 1965)contains the foilowing declarationsand reserva-
tions:
A. Declarations:

(a) Re Article1
In the view of the Government of the French Republic, the expression COUNTER-MEMORIAL OF DENMARK 231
"adjacent" areas implies a notion of geophysical, geological and geo-
graphical dependence which ipso facto mles out an unlirnited extension of

the continental shelf.
(b) Re Article 2 (parngraph4)
The Govement of the French Republic considers that the expression
"living organisms belonging to sedentary species" must be interpreted as
excluding crustaceans, with the exception of the species of crab temed
"barnacle".

B. Reservations:

(a) Re Article 4
The Govemrnent of the French Republic accepts this Article only on
condition that the coastal State claiming that the measures it intends to
take are "reasonable" agrees that if their reasonableness is contested it
shall be determined by arbitration.

(b) Re Article 5 (paragraph I)
The Government of the French Republic accepts the provisions of
Article 5, paragraph 1, with the following reservations:
(i) An essential element which should serve as the basis forappreciating
any "interference" with the conservation of the living resources of the
sea, resulting from the exploitation of the continental shelf, particu-

larly in breeding areas for the maintenance of stocks, shd be the
technical report of the international scientific bodies responsible for
the conservation of the livingresources of the sea in the areas specified
respectively in Article 1of the Convention for the Northwest Atlantic
Fisheries of 8 February 1949and Article 1 ofthe Convention for the
North-east Atlantic Fisheries of 24 January 1959.
(ii)Any restrictions placed on the exercise of acquired fishing rights in
waters above the continental shelf shaii give rise to a right to com-
pensation.
(iii) It must be possible to establish by means of arbitration, if the matter
is contested, whether the exploration of the continental shelf and the
exploitation of its natural resources result in an interferencewith the
other activitiesprotected by Article 5,paragraph 1,whichis "unjustifi-
able."

(c) Re Article6 (paragraphs1 and 2)
In the absence of a specific agreement, the Government of the French
Republic will not accept that any boundary of the continental shelf
determined by application of the principle of equidistance shallbe invoked
against i:
ifsuchboundary iscalculatedfrornbaselinesestablished after 29ApriI 1958;
if it extends beyond the 200-metre isobath;

if it lies in areas where, in the Government's opinion, there are "special
circumstances" within the meaning of Article 6, paragraphs 1 and 2, that
is to say: the Bay of Biscay, the 13ayof Granville, and the sea areas of the
Straits of Dover and of the North Sea off the French coast".
3. In its instrument of ratification (deposited on 28 January 1966), the
Govemment of Yugoslaviamade the following reservation in respect of
Article 6of the said Convention :"In delimitingitscontinental shelf,Yugoslavia
recognizesno 'specialcircurnstances'which should influencethat deIimitation."232 NORTH SEA CONTINENTALSHELF
C. Objections to Reservations and Declurations

A number of Governments have declared that they do not find accepîabIe
some of the reservations andlor declarations made by certain Governments
with respect to the Convention on the Continental Sheif.

1, In a letter dated 19September 1962,the Permanent Representative of the
UnitedStates of America tothe United Nations has informed the Secretary-
General of theUnitedNations that theUnitedStates does not find the following
reservationsacceptable:
"(1) The reservation made by the Iranian Government to Article 4.
(2) Theresewationrnade by theFederalRepublic of Germany to Article 5,
paragraph 1 ."
2. The Government of the FrenchRepublic in its instrument of accession
(supra B, 2) declared: "The Govement of the French Republic does not
accept the reservation made by the Government of Iran with respect to ArticIe4
of the Convention."

3. In a letter dated 9 September 1965to the Secretary-General of the United
Nations the Permanent Representative of the UnitedStates of Arnericato the
United Nations declared with regard to the French instrument of accession:
", .,TheGovernment of the United States of Arnerica does not find acceptable
the reservations to Articles 4, 5 and 6. The declarations by France with respect
to Articles 1 and 2 are noted without prejudice."
4. In a letter dated 29 September 1965 to the Secretary-General of the
United Nations the Permanent Representative of Yugoslavia to the United
Nations declared: ".. .nie Government of Yugoslavia does not accept the
reservation made by the Governrnent of the French Republic with respect to
Article 6 of the Convention on the Continental Shelf,Geneva, 1958."
5. In a letter received on 14January 1966,the Deputy Permanent Represen-
tative of the UnitedKingdomof GreatBritainandNorthernIrelandto the United
Nations communicated to the Secretary-General of the United Nations the
foIlowing observations of the Government of the United Kingdom on the
declarationsand reservations contained in the French instrument of accession:

Re Article 1
The Government of the United Kingdom take note of the declaration
made by the Govemment of theFrench Republic and reserve theirposition
concerning it.
Re Article 2 (paragraph4)

This declaration does not cal1for any observations on the part of the
Government of the United Kingdom.
Re Article 4
The Govemment of the United Kingdom and the Government of the
French Republic are both parties to the Optional Protocol of Signature
concerning the Compulsory Settlement of Disputes done at Geneva on
29 April 1958.The Government of the United Kingdom assume tbat the
declaration made by the Government of the French Republic is not
intended to derogate from the rightsand obligations of the parties to the
Optional Protocol.
Re Article 5 (paragraph 1)

Reservation (i) does not cal1for any observations on the part of the
Government of the United Kingdom, The Government of the United Kingdom are unable to accept reser-
vation (ii).

The Governent of the United Kingdom are prepared to accept reser-
vation (iii) on the understanding that it is not intended to derogate from
the rights and obligationof parties to the Optional Protowl of Signature
concerning the Compulsory Settlement of Disputes.
Re Artick 6 (paragraphs I and2)
The Government of the United Kingdom are unable to accept the
'reservations made by the Government of the French Republic.

6. On depositing its instrument of ratification on 18 February 1966 the
Government of the Kingdom of theNetherlandsdeclared that they "do not hd
acceptable-
the reservations made by the Iranian Government to Article 4;
the reservationsmade by the Govemment of the French Republic to Articles 5,
paragraph 1, and 6, paragraphs 1 and 2".
And that-

"the Government of the Kingdom of the Netherlands reserve al1 rights
regarding the reservations in respect of Article 6 madby the Government of
Venezuela when ratifying the present Convention." NORTH SEA CONTINENTAL SHELF

Part 1

TERRITORIAL SEA

Article12

1. Where the coasts of two States are opposite or adjacent to each other,
neither of the two States is entitled, failing agreement between them to the
contrary, to extend its territorial sea beyond the median line every point of
which is equidistant from the nearest points on the baselines from which the
breadth of the territorial seas of each of the two States is measured. The

provisions of this paragraph shallnot apply, however, where it is necessary by
reason of historic title or other special circumstances to delimit the territorial
seas of the two Statesin a way which is at variance with this provision.
2. The line of delimitation between the territorial seas of two States lying
opposite to each other or adjacent toeach other shall be marked on large-scale
charts officiailyrecognized by the coastal States.

PartII

CONTIGUOUS ZONE

Article 24

1. In a zone of the high seas contiguous to its territorial sea, the coastal
State rnay exercise the control necessary to:
(a) prevent infringement of its customs, fiscal, immigration or sanitary
regulations within its territory or territorial sea;

(b) punish infringement of the above regulations cornmitted within its territory
or territorial sea.
2. The contiguous zone rnay not extend beyond twelve miles from the base-
Iine from which the breadth of the territorial sea is measured.
3. Where the coasts of two States are opposite or adjacent to each other,
neither of the two States is entitled, failing agreement between them to the
contrary, to extend its contiguous zone beyond the median line every point of
which is equidistant from the nearest points on the baselines from which the
breadth of the territorial seas of the two States is measured. COZTNTER-MEMORIA OF DENMARK

Article 7

1. Having regard to the provisions of paragraph 1 of Article 6, any coastal
State may, with a view to the maintenance of the productivity of the living
resources of the sea, adopt unilateral measures of conservation appropriate
to any stock of fish or other marine resources in any area of the high seas ad-
jacent to its territorial sea, provided that negotiations to that effect with the
other States concerned have not led to an agreementwithin six months,
2.The measures which the coastal State adopts under the previous para-
graph shall be valid as to other States only if the following requirements are
fulfille:
(a) that there ia need for urgent application of conservation measures in the
light of the existing knowledge of the fishery;
(b) that the measures adopted are based on appropriate scientificfindings;
(c) that such measures do not discriminate in form or infact against foreign

fishermen.
3. Thesemeasures shall remain in forcepending the settlement, in accordance
with the relevant provisions of this Convention, of any disagreement as to
their validity.
4. If the rneasures are not accepted by the other States concerned, any of
the parties may initiate the procedure contemplated by Article 9. Subject to
paragraph 2 of Article 10, the measures adopted shaIl rernain obligatory
pending the decision of the special commission.
5. The principles of geographicaldemarcation as defined inArticle 12 of the
Convention on the Territorial Sea and the Contiguous Zone shall be adopted
when coasts of different Statesare involved. NORTH SEA CONTINENTAL SHELF

Article7

Where the coastsof two Contracting Partiesare opposite or adjacentto
each other, neither of these ContractingPartiisentitled, failiagreement
betweenthemto the contrary,to establishafisheriesrégibeyondthe median
line, every point owhich is equidistantfrom the nearestpoints on the low
waterlinesof thecoastsof the ContractingPartiesconcerned. COUNTER-MEMOFWL OF DENMARK

By Th, Sorgenfrei, D.Sc.,
Professor at the Technical University of Denmark,
Adviser to the Danish Concessionaire.

The search for hydrocarbons in Denmark and the Danish North Sea con-
tinental sheif has beenpursued in accordance with advanced exploration
practice.
Work started on land in 1935and in the North Sea continental shelfin 1963.
It included mapping of the subsurface by means of gravity, magnetic, and
seismic surveys, and subsequent drilling of wells. From 1935 until now
(November 1967) a total of 35 wells have been completed in the land area,
and two wellshave been completed inthe Danish North Sea continentaI shelf.
Important geological knowledge was gained during the subsurface mapping
and the drilling operations.

One of the most outstanding regional structures discovered during the
exploration campaign is a subsurface ridge extending from the land area of
Denmark about 220 kms. out into the Danish North Sea continental shelf.
This ridge is called the Fyn-Grindsted High. Drilling on land proved that it
consists of shallow crystalline rocks like granite and gneiss. The ridge is,
therefore, considered devoid of hydrocarbon prospects of importance, and the
Fyn-Grindsted High consequently reduces the prospective area of Denmark
and the Danish North Sea continental shelf considerably.
The extension of the High is shown on the accompanying map1which also
includes the weil locations. It appears from the rnap that 6 of the wells were
drilled on the Fyn-Grindsted High, 8 wells were drilled south of the High in
the so-called South Jutland Basin, while 21 wells were drilled north of the
High in the North Jutland Basin. None of these 35 wells drilfed on land
encountered commercial deposits of hydrocarbons.
The wells on the High were carried out at times when the nature and the

limits of this structure were rather unknown. Later wells wereal1drilled away
frorn the High.
This was also the case with the two wells cornpleted in the Danish North
Sea continental shelf area since 1966. The wells were drilled Westof the Fyn-
Grindsted High in an area which, from a scientific point of view, seemedto
be the most promising.Both wells have established the presence of oil and gas
deposits. The position of the wells appears £rom the accompanying map.
Drilling of a third well in the same general area started in October 1967to
the north Westof the first two wells, This well which is still driIling (Novem-
ber 1967)is also shown on the map.

See pocket inside backcover, NORTH SEACONïINENTAL SHELF

NOTE VERBAL EF 13 MAY1952 FROM THE DANISH GOVERNMEN TOTTHE SEC-

RETARIAT OF THE UNITEDNATIONS REGARDING DANISHCOMMENT TS THE
DRAFT ARTICLE OSN THECONTINENTA SLELF PREPARED BY THEINTERNATIONAL
LAW COMMISSI NN1951

(Yearbook of the InternationalLaw Commission, 1953, Vol. 11,'pp. 245-247)

Communicatifo rnm thepermanentdelegaiionof Denmark tutheUnitedNations

NOTE:By a note verbnleto the Secretariat, dated 13 May 1952, the Per-
manent Delegation of Denmark to the United Nations transrnitted the
following "cornments and viewpoints ofDanish experts". The note verbale
stated that "the Danish Government wishes to reserve its final position,
until it has been given the opportunity to review the points of view of
other countries as wellas the formulation of the final result of the existing

international CO-operationithis rnatter".
The draftis considereda properbasis for negotiatioon this subject. It is
considered particularly valuable that it hassucceededin obviating the difficulties
involved by the controversial question of the extent of territorial waters. By
refraining from fixingany definite geographical limit to the extent of the shelf
into the sea, differences of opinion have been precluded on that point. The
avoidance of any refemnceta sovereignty in the established sense of the word
is another useful aspect of the draft which refers only to an exclusive right to

exploration and exploitation without involving, for instance, the question of
the status of such areas during conditions of war and neutrality. The Danish
authorities would find it appropriate that 'theright of the coastal State as set
out in part 1,article 2, be expresslycharacterized as an exclusiveright since that
would preclude any idea of expansion of the territory of the State concerned.
The media through which the draft thus reaches a practicable arrangement
cannot, however, be considered a final solution to the problems as far as Den-
mark is concerned. In the Baltic, wherethere is no deep sea, the systernoutlined
in the draft will necessitate agreements with the other Baltic Powers, and such
agreements are likely to encounter difficultand may perhalis zirove irn-
practicable. On the west Coastof Denmark, the application of the p;inciple of

control and jurisdiction as far as possibiliti-s of exploitatio- exist might also
leadto conflicts of interest with other countries.
The draft, therefore, givesoccasion for certain cornrnents involvingquestions
of princi~le as weasvarious individual aspects:
For the special conditions existing off Danish coasts, part 1, article 7,
prescribes that two or more States to whose territories the same continental
shelf is contiguous shall establish boundaries by agreement; failing agreement,
the parties are under obligation to have boundaries fixed by arbitration, in-

volving-according to the commentaries-a possible recourse to the Inter-
national Court of Justice.
This alternative, however, is not practicable in al1cases. In the first place,
not al1 States wouldbe willing to abide by a solution of that nature; more COUNTER-MEMORIAL OF DENMARK 239
particularly, some of the countries which would be involved by the areas in
question are known to be opposed thereto as a matter of principle. But even

when the question is to bereferred to arbitration or to a court, a solution would
seem unlikely, unless the treaty itself aiready contained certain directives or
guiding principles, since these problems involveentirely new aspects which can
hardly be decided according to existing legal or political principles. In this
connexion, the commentaries admittedly refer to a decision ex aequoet bono
by which the court may, to some extent, disregard existing law or the fact that
the existing law contains no definite rules or guiding principles. Nevertheless,
this expression has certain bearings upon a legal or a generalmoral evaluation,
but provides no guidance for decision of entirely new technical problems or
political pretentions.
Hence, the Danish authorities would find it desirable that the treaty itself
should provide for a body composed of experts which could submit proposals
for such delimitations, possibly with some form of appeal or recourse to ar-
bitration or to a court. This body might consist of, for instance, three non-

partisan expert members, one appointed by the Security Council of the United
Nations, one by the General Assembly, and one by the President of the Inter-
national Court of Justice.
The decisions of this body should be reached on the bases of directives laid
down in the treaty. Should a Stateinterested in the decision hd that such direc-
tives had not been cornplied with, or that the decision was otherwise unreason-
able, it should be entitIed to refer that question tacourt ofarbitration estab-
lished by the parties or, failing this, to the InternationalCourt of Justice which
should have authority to decide the aspects specificallyrnentioned in the treaty,
and possibly to refer the matter back to the expert body for reconsideration
if the circumstances were found to warrant such action.
In regard to the directivesmentioned above, the commentaries already refer
to the median line, and where this line is applicable, such reference is fully ap-
proved by Denmark. Cases may occur, however, where a median line is not
directlyapplicable, for instance, because the interests in the exploitation of the

shelf are more or lessat right angles to each other; in such cases referencecouId
be made to a solution according to the bisector.
Furthermore, it is felt desirable that the points of view referred to on page 71
of the rapporteur's second report were expressly incorporated into the treaty,
namely, the reference to a line perpendicular to the Coastdrawn from the point
at which the frontier between the territorial waten of the two countries reaches
the high seas. If such a boundary between the two territorial waters of two
countries has previously been fixed according to a line of demarcation which
can be prolonged towards the high seas, such prolongation should be indicated
as the starting point for the line of demarcation also on the continental shelf.
However, in some cases an area may have to be divided between three or
more countries. In such cases reference may be made to planes forrning the
locus to the points which are closer to one of the countries than to any of the
others.

Such directives or guiding principles would establish a basis for a solution
in cases where agreementamong the interested countries could not be reached,
while the absence of such principles may entail differences of opinion and
disputes which the draft intends to obviate.
Havingregard to the basicprinciples of the draft in connexion with the above
comments, the Danish authorities have prepared the enclosed sketch" of a

21 Not reproduced240 NORTH SEA CONTINENTAL SHELF

division of the shelf contiguous to the Danish coasts facing the North Sea and
the Baltic and the waters between them. This sketch is primarily based on the
boundaries fixed on 3 September 1921between Danish and Gerrnan territorial
waterseast and Westof Jutland, and the boundary fixedby agreement of 30Janu-
ary 1932betweenDanish and Swedishwatersinthe Sound and the prolongation
of these lines combined with the median lino, where the latter is applicable,
and otherwise based on planes forming the locus of points closer to Denmark
than to any other country involved. The sketch might serve as an illustration
of a division under concrete conditions calling for special solution; the prin-
ciples outlined may also be applicable to analogous cases in other geographicai
areas.
Concerning the actual exploitation of the sea-bed and the subsoil, part 1,
article 5,expressly Statesthat the new arrangement shall not prevent the laying

and maintenance of subrnarine cables by other States. It is assumed that this
provision refers to cables not only for telecommunication but also for trans-
mission of power and the like. The Danish authorities are in full agreement
with this provision. With the present formulation it rnay be doubtful, however,
which of the two interests shaU be overriding or, in other words, whether a
State may be required to rnove the cable or, vice versa, whether a cable can be
laid even where this is at variance with an exploitation intended by the coastal
State. It would seemnatural here to distinguish betweencables already existing,
in which case a removal, if any, should probably entai1a compensation for the
expenses incidental to such removal, and to the laying of new cables which
should be effected in such a way as not to interfere with steps for exploitation
of the sea-bed already taken by the coastal State. Also where other installations
are involved which have already been placed by other States, for instance, the
mooring of lightships and the like, some regard should be had to arrangements

existing already.
On the other hand, the commentaries indicate that this provision shall not
be extended to pipelines, which is probably intended to mean the iaying of
new pipelines. However, other types of installations may be placed on the sea-
bed and, in the view of the Danish authorities, it would therefore be desirable
to have it expressly established that the exclusive right recognized for the
coastal State (see the remarks to part A, article2above) shall cover any other
exploitation of the sea-bed and the subsoil, with submarine cables as the only
exception, for instance the right to cultivation (algae and other marine plants),
establishment and maintenance of permanent installations for exploitation of
the sea-bed, including the fixingof permanent stakes and other fishing devices,
stone-gathering and pearl-fishing on the sea-bed, etc., so that other States could
not in any case, apart from submarine cables, use the sea-bed or the subsoil
without the consent of the coastal State, with the explicit recognition that the
exclusive right comprises al1such forms of exploitation.

With respect to part II, articles 1 and 2, the following cornments may be
made :
The Danish authorities take a favourable view of the efforts expressed in
these articles to provide possibilities for the conservation and control of fishing
on the high seas in such geographical areas where adequate preservation and
control have not been established already. Moreover, it is acknowledged that,
in areas where only few countries take part in fishing, such countries have a
prirnary interest in th enforcernent of provisions of this nature. It is felt,
however, that such States should not be in a position where they could use the
initiative that would have to be left to them for these purposes to establish
priority for their own fishermen to the exclusion of fishermen from other coun- COUNTER-MEMORIALOF DENMARK 241
tries who might later wish to take part in such fishing activities. Such priority
would, in fact, be feasible evenif the arrangement formally placedal1countries

taking part in such fishing on an equal footing, if for instance the permissible
fishingmethods did not have the same value to fishermen of other countries-
or could not be used at all(In this connexion, referenceis made to the proce-
dures whichin some cases have rendered illusory the application of the most-
favoured-nation clause). Hence, jt would be essential to clarify the issue as to
when and under what conditions any countries arriving later should be entitled
to participation in the establishment of new regulations in order that, if agree-
ment cannot be reached, such countries should not have to be governed by
previously adopted provisions for an indefiniteperiod. It is therefore suggested
that procedures should be established for application if provisions for preserva-
tion and control have already been adopted by a certain number of countries
for a geographical area in which other countries later wish to take part in the
fishingactivities and consider theprovisionsalready established to beat variance
with their interests, or consider the control applied to be inadequate.
In regard to the international body referred to in articl2,theDanish author-
ities wish to point out that it has been charged with two different tasks, viz.,to

make regulations where interested States are unable to agree arnong thern-
selves, and to conduct continuous investigations of the world's fisheries and
the methods employed in exploiting them.
In the former respect it is pointed out that Denmark is in agreement with
the principle of an international regulation of fisheries in casesof disagreement
amonç the interested parties, but a final attitude to the draft proposal cannot
be decided upon until the composition and organization of the proposed body
is known in greater detail. lt should be noted, however, that such regulation
could, to a large extent, probably be undertaken by existing international
agencies such as the International Council for the Exploration of the Sea.
In regard to the function of the body referred to in article 2,in respect of in-
vestigations, it should also be noted that in the opinion of the Danish author-
ities the existing international bodies, such as the International Council for
the Exploration of the Sea, have functioned satisfactorily and that their activi-
ties have provided valuable experience and practical working methods; hence,
it would not be desirable at the present time to replace existing bodies by one

single international body. The Danish authorities therefore propose that the
body referred to in article 2 shouid conduct its investigations in consultation
with the existing international bodies and in geographical areas where such
investigations are not already being carried out by existing international bodies.
In regard to part 11,article 3, the Danish authorities refer to their comments
on part JI, article 1, and point out that it would be natural for coastal States
to have an exclusiveright to pfacepermanent installations for sedentaryfisheries
in that part of the high seas that is contiguous to the territorial waters of such
State, analogous to the exclusive right of coastal States to place installations
for exploitation of the coastal State's part of the continental shelf as stated
above. It would also be desirable to ensure free navigation by adding a provi-
sion to the effect that sedentary fisheries must not result in substantial inter-
ference with navigation, cfr. a similar provision in part 1,article 6, conrerning
the exploration and exploitation of the continental shelf.
The cornmentaries of the International Law Commission define sedentary
fisheries as fishing activities carried out by means of stakes embedded in the
sea-fioor. Such stakes, it is presumed, are placed during the fishing season

and then removed, whereas the establishment of permanent installations, as
already mentioned, should be reserved for the coastal State. Sedentary fisheries,242 NORTH SEA CONTINENTALSHELF
it is noted, can be undertaken alsby devicesother than stakes, e.g., buoys and
anchors.
The following comments refer to partII,article4 of the draft proposal:

The Danish authorities appreciate the potential need for establishment of
contiguous zones adjacent to territorial waters where a coastal State may exer-
cise the control necessary to prevent the infringement, within its territory, of
customs,fisc arlsanitary regulations. The iimit of twelve miles frorn the coast
fixedfor such zones is also acceptable to the Danish authorities.
It has beennoted with satisfaction that no extension of territorial waters is
involved.
Some concem isfelt, however, about the absence of a specificdefinition of
the nature of the control in question, since this rnay leato abuse by the in-
stitution of meticulous control measures on navigation and fisheries where
such ciontrol is not required to prevent infringement of customs, fiscal and
sanitary regulations. Abuses of this type might, in point of fabe,tantamount
to an expansion of territorial waters.
The Danish authorities feel, therefore, that contiguous zonesshould not be
established unilaterally by a coastal State, but only by treaties between the
interested States. NORTH SEA CONTINENTALSHELF

PROMULGAT IPNTHE PROCLAMATIO ON THE FEDERAG LOVERNMEN CT N-
CERNING THE EXPLORATI OND EXPLOITATIO ONF THEGERMAN CONTINENTAL
SHELF OF 22 JANUARY 1964

Bundesgesetzblatt, Jahrgang 1964,Teil II

Bekanntmachung der ProklamationderBundesregierung
über die Erforschung und Ausbeutung des deutschen Festlandsockels

Vom 22. Januar 1964

Die von der Bundesregierungam 20. Januar 1964
beschlossene Proklamation über die Erforschung und
Ausbeutung des deutschen Festlandsockels wird
hiermit bekanntgemacht.

Bonn, den 22. Januar964

Der Bundesminister desAuswartigen
In Vertretung
Carstens

Proklamation der Bundesregierung
Die Genfer Konvention über den Festlandsockevom 29. April 1958 ist
am 30. Oktober 1958von der BundesrepublikDeutschland und darüber hinaus
von 45 weiteren Staaten unterzeichnet worden. Sie ist inzwischen bereits von
21 Staaten ratifizîert oder durch Beitritt angenommen worden und wird nach

ihrem Artikel 11 Abs. 1 in Kraft treten, sobald ein weiterer Staat die 22.
Ratifkationsurkundehinterlegt hat. Die Bundesregierung wird den gesetz-
gebenden Korperschaften in Kürze den Entwurf eines Zustimmungsgesetzes
zu dieser Konvention vorlegeurn die verfassungsrechtliche Grundtage für
die Ratifikation durch die Bundesre~ublik Deutsczuschaffen.
Um ~echtsunklarheitenzubeseitigen, die sich in der gegenwartigenSituation
bismm Inkrafttreten der Genfer Konvention über den Festlandsockel und bis
ni ihrer Ratifikation durchdie BundesrepublikDeutschland ergeben konnten,
KaItesdieBundesregierung fur erforderlich, schonjetzt folgendes festzustellen:
1. Die Bundesregierung sieht auf Grund der Entwicklung des allgemeinen
Volkerrechts wie es in der neueren Staatenpraxis und insbesondere in
der Unterzeichnung der Genfer Konvention über den Festlandsozuml

Ausdruck kommt, die Erforschung und Ausbeutung der Naturschatze
des Meeresgrundes und des Meeresuntergrundes der an die deutschen
Meeresküsten grenzenden Unterwasserzone auBerhalb des deutschen
Küstenmeeres bini einer Tiefe von 200 rnun- soweit die Tiefe des
darüber befindlichen Wasser die Ausbeutung der Naturschatze ge-tattet
auch hierüber hinaus als ein ausschlieBlichesHoheitsrecht der Bundes-
republikDeutschland an. im einzelnen bleibt die Abgrenzung des deutschen
Festlandsockels gegenüber dem Festlandsockelauswartiger Staaten Verein-
barungen mit diesen Staaten vorûehalten.
2. Die Bundesregierung sieht alle Handlungen, die im Bereich des deutschen
Festlandsockels zurErforschungund Ausbeutung seiner Naturschatze ohne COUNTER-MEMORIALOF DENMARK 245

ausdrücklicheZustirnrnungder zustandigen deutschen Behordenvorge-
nommenwerdensollten,alsunmlassigan. SiewirdgegensolcheHandlungen
erforderlichenfgeeigneteMaBnahmenergreifen.

Bonn, den20.Januar1964
ERHARD SCHRODER NORïH SEA CONTINENTAL SHELF

Federal Law Gazette, Year 1964, Part II (p. 104)

The Proclamation of the Federal Government adopted on 20 January 1964
conceming the exploration and exploitation of the Gerrnan continental
shelf is hereby promulgated.
Bonn, 22 January 1964

The Federal Minister of Foreign Afîairs
By order
Carstens

Proclamationof the FederalGoverriment

The Geneva Convention on the Continental Shelf of 29 April 1958, was
signed by the Federal Republic of Germany on 30 October 1958, and has
furthemore been signedby 45 other States. In the meantirne it has been ratified
or approved through accession by 21 States, and under subarticle(1)of Article
eleven it wiilcorneinto operation as soonas one additional State has deposited
the twenty-second Instrument of Ratification. The Federal Government will
shortly submit to the Legislature an AccessionBillon this Convention in order
to create a constitutional basis for ratification by the Federal Republic of
Germany.
In order to eliminate legal uncertainties that rnight arise during the present

situation until the Geneva Convention on the Continental Shelf cornes into
operation and is ratified by the Federal Republic of Germany, the Federal
Government deems it desirable already now to niake the following statement:
1. In view of the development of general international law as expressed in
recent State practice and in particular in the signing of the Geneva Conven-
tion on the Continental Shelf, the Federal Government regards the ex-
ploration and exploitation of the natural resources of the seabed and subsoil
of the subrnarine areas adjacent to the German Coastbut outside the terri-
torial sea down to a deptof 200rnetres, and, beyond that limit, to where the
depth of the superjacent waters adrnits of the exploitation of the natural

resources, as the exclusive sovereign right of the Federal Republic of
Germany. The detailed delimitation of the German continental shelf
vis-Si-visthe continental shelves of other States will rernain the subject of
international agreements with those States.
2. The Federal Government regards al1acts performed within the area of the
German continental shelf for the exploration and exploitation of its natural
resources without the express permission of the competent German author-
ities as inadmissible. It will take appropriate measures agaiast such acts
whenever necessary.
Bonn, 20 January 1964
ERHARDISCHRODER COUNTER-MEMORIAL OF DENMARK

Annex11
EXPO DESMOTIFS OF THE GERMAN BILL FOR THE PROVISIONA DETERMINA-
TlON OF R~GHT SVER ME CONTINENTA SHLELF(15 MAY1964)

Begründung
1. Allgemeines

1.

Der Entwurf will für die Erforschung und Ausbeutung der den deutschen
Meereskusten vorgelagerten Teile des sog. Festlandsockels, d. h. des Meeres-
untergnindes auBerhalb der Hoheitsgewasser, erstmalig eine gesetzlicheRege-
lung schaffen.
Ein Bedürfnis hierfür hat sich aus der Proklamation der Bundesregvomung
20. Januar 1964 (Bundesgesetzbl. II S. 104)ergeben. Die im Entwurf vorge-
sehene Regelung ist die innerstaatliche Erganzung der auf volkerrechtlichem
Gebiet liegenden Auswirkungen der Proklamation. Lange Zeit hindurch war
inder volkerrechtlichen Lehre und Praxis die Moglichkeit des Enverbs von
Sonden-echten einzelner Staatan den ihrer Küste vorgelagerten Teilen des
Festlandsockels verneint worden. In den letzten Jahren setzte sich die gegen-
teilige Auffassung durch, daB die Gewinnuund Aneignung der Schatze des
Meeresuntergrundes nicht frei, vielmehr den Küstenstaaten vorbehalten seien.
AISsichtbarer Ausdruck dieser Wandlung kann narnentiich auf der Genfer
Seerechtskonferenzzustande gekommene Konvention über den Festlandsockel

vom 29. April 1958 (abgedrucktin Archiv des Volkerrechts Bd. 7 (1958/59)
S. 325ff.) gewertetwerden,die neben 45 anderen Staaten auch von der Bundes-
republik Deutschland unterzeichnet undin der Zwischenzeit von21 dieser
Staaten ratifiziert worden ist. Nach ihrem Artikel 11 wird diese Konvention
bereits mit der Hinterlegungder nachstenRatifikationsurkunde in Kraft treten.
Es kann angesichts dessen davon ausgegangenwerden, daBder Bundesrepublik
spatestens seit der ohne Widerspruch gebliebenen Proklamation der Bundes-
regierung vom 20. Januar 1964 im Bereich des deutschen Festlandsockels
Hoheitsrechte zustehen, die sich inhaltlich mit den in der Genfer Konvention
zugunsten der Küstenstaaten festgelegten Rechten decken.
Nach Artikel2 derGenferKonvention übt derKüstenstaat ,,für dieErforschung
desFestlandsockelsund für die Ausbeutungseiner Naturschiitze Hoheitsreichte"
über diesen Teil des Meeresuntergrundes aus. Festlandsockel ist dabei ,,der
Meeresgrund und der Meeresuntergrund der an die Küste grenzenden Unter-
wasserzonen aui3erhalb des Küstenmeeres bizueiner Tiefe von 200m oder
darüber hinaus, soweit die Tiefe des darüber befindlichen Wassers die Aus-
beutung der Naturschatzedieser Zone" gestattet. Ohne ausdrückliche Zustirn-

mung des Küstenstaates darf niemand denFetlandsockelerforschenoder seine
Naturschatze ausbeuten. Der Küstenstaat hat andererseits dafur zu sorgen,
daB durch die Ausübung seiner Rechte Schiffahrt und Fischfang nicht unbillig
behindert oder gefahrdet werden. Irn übrigen sind jedoch die über dem Fest-
landsockel befindIichenGewasser weiterhin Hohe See,und ebensowenigwerden
die bisherigen Rechtsverhaltnisse irn Luftraurn über diesen Gewassern von
der Anerkennung der bezeichneten Rechte der Küstenstaaten berührt.
2.
................,.,.....-. NORTH SEA CONTINENTAL SAELF

Annex11A

Exposé des Motifs
1. General

The aim of this Bill is to provide, for the fist time, statutory rules for
the exploration and exploitation of those parts of the continental shelf which
are adjacent to the Gerrnan coast, i.e. the seabed outside the territorial sea.
A need for such rules has arisen out of the Federal Governrnent's Pro-
clamation of 20 January 1964(Bundesgesetzbl,11,p. 104).The rules provided
for in this Bill are to be the municipal supplement to the effects of the Pro-
clamation inthe fieldof international law.Theory and practice of international
law have long denied the possibility for coastal States to acquire special rights
over those parts of the continental shelf which are adjacent to their coasts. In
recent years, the opposite viewhas corneto prevail, narnelythat the exploitation
and appropriation of the resources of the subsoil are not free but reserved for

the coastal States. This change is manifest especiallyin the Convention on the
Continental Shelf of 29 April 1958,adopted at the Geneva Conference on the
Law of the Sea (reproduced in Archiv des Vülkerrechfs,vol. 7, 1958159p ,p. 325
et seq.).This Convention, signed by the Federal Republic of Germany and
45 other States, has now been ratified by 21 of those States. In pursuance of
Article 11 of the Convention the latter will enter into force when the next
instrument of ratification is deposited.
In the light hereof, it rnay be assumed that at Ieast from the tirne of the
Federal Governrnent's Proclamation of 20 January 1964, against which no
objection has been raised, the Federal Republic holds sovereign rights over
the Gerrnan continental shelf, and that the contents of these rights conform
to those established for coastal States by the Geneva Convention.
According to Article 2 of the Geneva Convention the coastal State exercises
"over the continental sheIfsovereign rights for the purpose of exploring it and
exploiting its natural resources" over that part of the seabed.For this purpose,
seabed is to be understood as "the seabed and subsoil of the submarine areas

adjacent to the coast but outside the area of the territorial sea, to a depthof
200 metres or, beyond that limit, to where the depth of the superjacent waters
adrnits of the exploitation of the natural resources of the said areas". Without
the express consent of the coastal State no one is allowed to explore the con-
tinental shelf or exploit its natural resources. The coastal State, on the other
hand, must ensure that the exercise of its rights shall not unjustifiably irnpede
or jeopardize navigation and fishing. Moreover, the sea above the continental
shelf rernains part othe high seas,and the previouslegal position of the airspace
above that sea shall not be affected bythe recognition of the above-mentioned
rights of the coastal States either.
2 COUNTER-MEMORIAL OF DENMARK

REPOR TF THECOMMITT OFEEXPERT TSO THE
[INTERNATIOL NAAL COMMISSION OF 18 M~~j1953

(Yearbook oftheInternational Law Commission, 1953,Vol. II, pp. 77-79)

Rapport du Comité d'expertssur certaines questions d'ordre technique
concernant la mer territoriale

Serendant à une invitation du profesJ.P. A. François,rapporteur spécial
de la Commission du droit international pour le régimede la mer territoriale,
les experts suivants se sont réunisà titre personnel dans le PalPaixBe la
La Haye du 14 au 16 avril 1953 pour examiner certaines questions d'ordre
technique soulevéespendant les discussions de la Commission:
Professeur L. E. G. Asplund (Département de cartographie, Stockholm);
M. S. Whittemore Boggs (Special Adviser on Geography, Department of
State, Washingtop. C.]);
M. P. R.V.Couillault (ingénieuren chef du Servicecentral hydrographique,
Paris);

Commander R. H. Kennedy, O.B.E., R.N. (Retd.) (Hydrographic Depart-
ment, Admiralty, Londres) accompagné de M. R. C. Shawyer (Administrative
Oficer, Admiralty, Londres);
M. le vice-amiraA. S. Pinke (retraité) (Marine royale néerlandaise,La
Haye).
Le Comitéd'experts fut présidépar le rapporteur spécial,et le rapport fut
rédigépar M. C. W. van Santen, conseillerjuridique adjoint du Ministère royal
néerlandaisdes affaires étrangères, secrduaComité.
Un questionnaire dressépar le rapporteur spécialfut soumis aux experts.
Les questions ainsi que les réponses des experts sont donnéesdans les pages
suivantes.
Il convient de remarquer que cesréponsesontformuléesen tenant compte
du point de vue technique eten vue d'êtreinterprétées facilementpar les
navigateurs.

Si l'on accepte le principe que la mer territoriale soit mesuréede la
laisse de basse mer, quelle sera alors la ligne qui serait de préferenceadoptée
comme telle?

1. Sauf dans lescas ou d'autres dispositions seront plaligne de base,
a partir de laquelleest mesuréela mer territoriale, devrait êtrela laissede basse
mer (longeant la côte) ainsi qu'elle se trouve indiquéesur lesAgrande
échelle en service, reconnues officiellement par I'Etat côtier. Si des cartes
détailléesi,ndiquant la laisse de basse mer, n'existent pas, c'est la ligne côtière
(ligne de maréehaute) qui devrait servir de ligne de départ.
2. La Commission n'a pas estimé qu'ily avait lieu de craindreque l'omission

des dispositions arrêtéespar la Conférencede 1930,concernant les indications
spécialesen cette matière, ne soit de natuaeinciter les gouvernementA
déplacerles laisses de basse mer sur leurs cartes de façon exagérée.250 NORTH SEA CONTINENTAL SHELF
3. Toutefois, le Comité a ajouté Ia restriction qu'on ne devrait pas tenir
compte des rochers ou fonds affleurants au niveau de réduction des sondes,
choisi pour la carte (rocks awash).

4. Sides rochers ou fonds, couvrants et dkcouvrants, se trouvent dans la mer
territoriale, ils peuvent être priscomme points de départ pour mesurer la mer
territoriale. En pareil casilsformeront un saillant dans le tracé dela limite
extérieurede la mer territoriale.
5. En ce qui concerne les bancs de coraux, on considérera lerebord de ces
bancs, indiquésur cescartes, comme la laissede basse mer pour tracer la limite
de la mer territoriale.

Si l'on accepte le systèmede la laisse de basse mer comme règle générale
pour tracer la limite extérieurede la mer territoriale, tandis que dans les baies
une ligne droite travers la baie doit circonscrireleseaux intérieures»,quelles
sont les observations d'ordre technique sur les questions suivantes:

A. La distinction entre une baie et toute autre échancrure?
B. L'établissement d'un rapport entre la longueur maximum (Bmilles) de la
ligne droite susmentionnéeet l'étendue de lamer territoriale?
C. Les points entre lesquels ladite ligne droite devrait êtretirée?
D. La direction à donner à cette ligne,ou les points entre lesquels cette
ligne doit être tiréea,u cas où plusieurs lignes de B millespeuvent êtretracées?

ad. A.
1. Une baie est une baiejuridiqlu orsque sa superficieest égaleou supérieure

la superficie du demi-cercle ayant comme diamètre la ligne tiréeentre les
points limitant l'entrée dela baie. (Sont exceptées les baies historiques, ainsi
libelléessur les cartes.)
2. Si la baie a plus d'une entrée - voir paragraphe B - le demi-cercle
devra êtretracé en prenant comme diamètre la somme des lignes fermant
toutes ces entrées.
3. Si des îies existent dans une baie, leurs superficies seront comprises dans
la superficie totale de la baie.

ad. B.
1. La ligne délimitant l'entréed'une baie (au sens juridique)ne devrait pas
dépasser10millesen largeur (deux fois l'horizon visuel par un temps clair pour
un observateur situésur une passerelle à une hauteur de 5 mètres). Dans les

cas de grand marnage, la laisse de basse mer sera considéréecomme ligne
côtièrepour calculer la ligne d'entrk.
2. Sipar suite de la présence d'îles une baiecomporte plusieurs entrées,des
lignes de démarcation peuvent êtretracées fermant ces ouvertures, pouwu
qu'aucune d'elles ne dépasse une longueur de 5 milles - sauf une pouvant
atteindre 10milles.

ad. C.
1. Au cas ohl'entréed'une baie ne dépasseraitpas JOmilles, la Iigne inter
fauces terraruni devrait constituer la ligne de démarcation entre les eaux
intérieureset la mer territoriale.
2. Au cas où l'entréede la baie serait de'plus de 10 milles, il faudrait tracer
la ligne de démarcation A l'intérieur dela baie,18où elle n'excéderaitpas 10 COUNTER-MEMORIAL OF DENMARK 251

milies. Si plusieurs lignes de 10 miiies peuvent êtretracées,on devrait choisir
la ligne enfermantdans la baie la superficied'eau la plus grande.

ad.D.
Devenue superflue 5cause de la réponseà la question C.

III

Si Ia laisse de basse mer peut êtreremplacée par des lignesde base droites,
systèmereconnu par la Cour internationale de Justicedans l'affairedes pêche-
ries anglo-norvégienne,quelles seront les questionsd'ordre technique quipour-
ront surgir concernant:
A. Le choix des points entre lesquels ces lignes doivent êtretirées?
B. La longueur de ces lignes?

C. Les îles, les rochers, les séchesse trouvant à moins de T milles devant la
côte? (T indique l'étenduede la mer territoriale).

1. Le Comitéétait d'avis que la longueur maximum admissible pour une
((lignede base droitei)(au senstechnique "straighrbase-line")devrait êtrefixée
d'abord. Le Comité s'est prononcé en faveur d'une longueur maximum de
10milles (voir explication par. II, B).
2. Ces ((lignes de baseiipourraient êtretracées - si le droit international le

permet formellement - entre promontoires de la côteou entre un promontoire
et une îie, pourvu qu'elle soit située 1imoins de 5 milles de la côte, ou enfin
entre des îles, pourvu que cespromontoires et/ou ces îles ne soient pas séparés
entre eux par une distance de plus de 10milles.
3. Le Comitéa estimé quel'on pourrait tracer des alignes de base droites 1)
entre plus de deux îles situées àune distance de moins de 5 milles les unes des
autres. Dans cecas, ces îles constitueraient un «groupe iiLes eaux renfermées

par ces lignes de base devraient êtreconsidérées comme eaux intérieures.
4. Le Comitéa reconnu comme cas spécialun a groupe 1)d'îles dans lequel
ces lignes entre les îles n'ont pas plus de 5 milles de longueur saufune pouvant
atteindre 10 milies de longueur au maximum. Ce cas pourrait être appeléune
« baie fictiv1).

5. Une baie fictive de ce genre peut encoreêtreforméepar un chapelet d'iles
en conjonction avec une partie de la ligne côtière continentale, comme indique
au paragraphe II, B.
6. Le Comité était d'accordque les soi-disant ([lignesde base droites ))ne
devraient pas êtretracéesvers des fonds affleurants A basse mer ni a partir de
ceux-ci. Le rôle de ces fonds affieurants àbasse mer dans le tracéde la limite de
la mer territoriale a étédéveloppéau paragraphe 1, alinéa3.

Si, comme réglegénérale,le tracé deslignes de base ne peut s'écarter de
façon appréciable de la direction générale de lacôte, quelle sera l'exécution

technique de ce système?

1. Le Comitéétait d'accordque dans plusieurs cas, pour une côte quelcon-
que, il sera impossibled'établir une ((direction générale de la côteIIet il a pris
acte que tout effort en ce sens entraîne des questions comme celle de l'échelle
de la carte à employer dans ce but et la décisionquelque peu arbitraire sur
l'étenduede la cbte h utiliser dans la recherche de la ((direction gknérale11.252 NORTH SEACONTLNENTAL SHELF

2. Tenant compte de cette réserve,le Comité a répondu à la question IV en
fixant la longueurmaximum de toute «ligne de base droitIIA10milles.
3. Dans des cas exceptionneIs, lorsque le droit international le permet spé-
cialement, on peut admettre de tracer des lignes plus longues sur une côte
donnée. Toutefois, aucun point desdites lignes ne devrait être situéà plus de
5 milles de la côte.

4. Le Comité a estimé du point du vue technique qu'en principe le recours
aux ((lignesde base droitesndevrait &treévité ,xcepté comme prévuau para-
graphe II pour la limite d'une baie. Ces lignes, en effet, étendent de manière
injustifiéela superficides eaux intérieures,et reportent par trop vers le large
la limiteextérieuredelamer territoriale.
5. Dans les cas où les ((lignesde base droitesIJsont permises, 1'Etat côtier
sera tenu de publier le tracé adopté d'une manièresuffisante.

6, Le Comitéest opposé à l'établissement de toute liaisonentre la longueur
des ((lignesde base droitesiet l'étendue dela mer territoriale.

Comment faut-il fixerla limiteextérieuredela mer territoriale, lorsque celle-
ci aurait une largeur de T milles?

La limite extérieure de la mer territoriale est constituéepar la ligne dont
tous les,points sont h une distance de T milles du point le plus proche de la
ligne de base. Cette ligne est formée par une sériecontinuelle d'arcs de cercle
qui s'entrecoupent, et qui sont tracés avecun rayon de T milles, ayant leurs
centres à tous les points de la ligne de base. La limiteextérieurede la mer terri-
toriale est composéedes arcs de cercle les plus avances dans la mer. (Cette

méthode a déjhétéutilisée avant 1930, mais les définitions données parfois
comme cenveloppe des arcs de cercle 11,paraissent être fréquemment mal
comprises.)

Comment faut-il déterminer la frontière internationale entre deux pays dont
les côtes se trouvent vis-&-visl'une de l'autreà une distance de moins de 2
T milles?

La frontièreentre deux Etats dont lescôtessont situéesen facel'une del'autre
àune distance de moins de 2 T millesdevrait être commerèglegénéralela ligne
médianedont chaque point est équidistant des deux c6tes. Toute île doit être
prise en considération lors de l'établissementde cette ligne, h moins que les
Etats adjacents n'en aient décidé autrementd'un commun accord. De merne,
les fonds affleurantà basse mer, situés h moins de T milles d'un seul Etat,
devraient être prisen considération; par contre, les fonds de ce genre qui ne

sont pas soumis A une souveraineté déterminéeet qui se trouvent à moins de
T milles de l'un et l'autre Etat ne devraient pas entenrLignede compte lors
de l'établissement de la ligne médiane.Il peut toutefois y avoir des raisons
spéciales,telles que des intérêts de navigationou de pêche,écartant la fron-
tièrede la ligne médiane.h lignedevrait être tracée sur les cartesen service a
grande échelle,surtout lorsqu'une partie quelconque de l'étendue d'eau est
étroiteet relativement tortueuse. COLINTER-MEMORIA OLFDENMARK

Comment faut-il déterminer la délimitation des mers territoriales de deux
Etats adjacents? Est-ce que cela peuse faire par:
A. Le prolongement de la frontière de terre?
B. Une ligne perpendiculaire 1ila côteiil'endroitoù la frontière entre les
deux territoires atteint la mer?
C. Le tracéd'une ligne perpendiculaire partant du point mentionnésous B
suivant la direction généralede la ligne de côte?
D. Une ligne médiane?Si oui, comment faut-il tracer cette ligne?
Dans quelle mesure faut-il tenir compte de laprksence des îles, des sèches,

ainsi que des chenaux navigables?

1. Après une discussion approfondie le Comitéa declaréque la frontiére
(latérale)entre les mers territoriales respectives de deux Etats adjacentoù 121
elle n'apas déjkétéfixéed'une autre manière,devrait ttre tracéeselon le prin-
cipe d'équidistancede la &te de part et d'autre de l'aboutissement de la fron-
tière.

2. Dans certains cas, cette méthodene permettra pas d'aboutiàune solution
équitable,laquelle devra alors êtrerecherchkedans des négociations.

ObservationsurVI et VI1

Le Comités'est efforcé detrouver des formules pour tracer les frontières
internationalesdans les mers territoriales qui pourraienten mêmetemps servir
pour délimiter lesfrontières respectives de(plateau continental))concernant
ies Etats devant les côtes desquelles s'étendceplateau.

Observationgénérale

Le Comitétient A souligner que le tracé des limites extérieures de toute
Izonecontiguë idevra sebaser surla mêmeligneque celuides limites de mer
territoriale. NORTH SEA CONTINENTALSHELF

(English version)

Report of the Committee of Experts on Technical Questions concerningrhe
Territor Seal

At the invitation of Professor François, special rapporteur for the régimeof
the territorial sea of the International Law Commission,the followingtechnical
experts, acting in their persona1capacity, met at the Peace Palace, The Hague,
from 14to 16Aprii 1953,in order to examinecertain questions of a technical
nature raised during the discussions of the commission:

Professor L.E. G. ASPLUND (Geographic Survey Department, StockhoIm);
Mr. S. Whittemore BOGGS (Special Adviser on Geography, Department of
State, Washington D.C.);
Mr. P. R. V. COUILLAUL(T Ingénieur en Chef du Service central hydro-

graphique, Paris) ;
Commander R. H. KENNEDY O,.B.E., R.N. (Retd.) (Hydrographie Depart-
ment, Adrniralty,London) accompanied by Mr. R.C.SHAWYE (Rdministra-
tive Ofiicer,Admiralty, London);
Vice-Admiral A. S. PINKE (Retd.) (RoyaI Netherlands Navy,The Hague).

This Committee of Experts met under the chairmanship of the special
rapporteur and its report was drafted byMr. C. W. van Santen, assistant
juridicaI counseof the Netherlands Ministry of Foreign Affairs.
A questionnaire drawn up by the special rapporteur was submitted to the
experts. The questions, and the answers of the experts, are given below. Zt
should be ernphasized that these replies are given from the technical point of
view, bearing in rnind in particular the practical difficultiesof the navigator.

Assuming the territorial sea to be measured from the low-water Iine,
what line might then preferably betaken as such?

1.Except as otherwise provided for, the baseline for rneasuring the
territorial sea should be the low-waterline along the Coast as marked on

the largest-scale chart available, officiallyrecognized by the coastal State.
If no detailed charts of the area have been drawn, which show the low-
water line, the shore-line (high-water line) should be used.
2. The Cornmittee did not consider that there was any danger that
omission of the provisionsmade by the 1930Conference as regards special
indications in this matter, might tempt govemments unreasonably to
extend their low-water lines on their charts.

3. The Committee added a proviso, however, that rocks (and similar COUNTER-MEMORIAL OF DENMARK 255

elevations)awash at the datum of the chart ("au niveauqu'on a choisipour
Incarte") should not be taken into consideration.

4. Drying rocks and shoals that are exposed between the datum of the
chart and hi& water, if within the territorial sea, may be taken as indi-
vidual points of departure for measuringthe territorial sea, therebycausing
a bulge in the outer limit of the latter.
5. regards coral reefs,the edge of the reefas marked on the above-
mentioned charts, should be accepted as the Iow-water line for measuring
the territorial sea.

Accepting the low-water line system as the general rule for measuring
the territorial sea, while in bays a straight line across the bay should
circumscribe the "inland waters", 'what technical observations can be
made as to-

A. the definition of a bay as opposed to a mere cumature in the coast-
line?
B. any relation between the maximum length (B miles) of the above-
mentioned straight line and the width of the territorialsea?
C. the points between which the said straight Iine should be drawn?

D. the direction of or the points between which thislineshoulbe drawn
in case different Iines BfmiIes are conceivable?

ad A. 1.A bay is a bay in the juridical sense, if its area is as large as, or larger
than that of the semicircle drawn on the entrance of that bay. Historical +
bays are excepted; they should be indicated as such on the maps.
2. If a bay has more than one entrante-as indicated sub B-this semi-
circle should be drawn on a line as long as the sum-total of the fength of
the different entrances.
3. Islands within a bay should be included as if they were part of the
water area of the bay.
ad B. 1.The closing line across a (juridical) bay should not exceed 10 miles
in width, this being twice the range of vision to the horizon in clear
weather,from theeye of amariner at a height of 5 metres (which is the in-
ternationally accepted height for hydrographical purposes). In cases of

considerable tidal differences the low-water lines should be taken as the
shore-lines between which the width of the bay should be computed.
2.If the entrance of a (juridical) bay is split upainumber of smaller
openings by various islands, closing lines across these openings rnay be
drawn provided that none of these lines exceeds five miles in length-
except one which may extend up to a maximum of 10miles.
ad C. 1. In case the entrance of the bay does not exceed 10 miles in width,
the line inter faucesterrarumshould constitute the delimitation between
inland-waters and the territorial sea.
2.Jn case the entrance of the bay exceeds 10 miles, a closing line of
this length should be drawn within the bay. When different lines of this
length can be drawn, that line should be chosen which encloses the maxi-
mum water area within the bay.

ad D. D has become redundant by the answer to the foregoing question. NORTH SEA CONTINENTALSHELF

III

If the low-waterline may be replaced by a straight base-line, as indicated
by the International Court of Justice in the Anglo-Norwegian Fisheries
Case, what technical questions rnay arise as to-
A. the points between which these lines should be drawn?
B. the maximum length of these lines?

C. the islands, rocks and shallow waters within T miles before the coast
(T standing for the width of the territorial sea)?

1. The Cornmittee considered that the maximum permissible length for
a "straight baseline" should first be fixed.The Comrnitteechose 10miles,
this being-like already mentioned sub 2 B-twice the range of vision.

2. Such "straight baselines" might :be drawn-if specificallyjustified by
international law-between headlands on the coastline or between such
headlands and islands less than 5 miles from the coast or between such
isIands, provided such headlands and/or islands are not further than 10
miles apart.
3. The Comrnittee considored that between three or more islands at a
distance of Iess than 5 miles from each other, "straight baselines" might
be drawn. In that case, these islands constitute a group. Waters lying
within the outer baselines around a groupshouldbeconsidered as inland-
waters.
4. The Cornmittee recognizes as a special case a group of islands in
which one, but only one, of the said connecting lines exceeds 5 miles
though not 10 miles in length. This case may be called a "fictitious bay".
5. A "fictitious bay" may also be formed by a string of islands taken
together with aportion of the mainland coastIineas providedfor under 2B.
6.The Committee agreed that "straight baselines" should not be drawn
to and from drying rocks and shoals.Their part in measuring the territorial
sea has been stated sub 1.

If the baseline should, as]a rule, not depart to any appreciable extent
from the general direction of the coast, how should this technically be
accomplished?

1. The Comrnittee agreed that it is impracticable to establish any
"general direction of the coast" in many instances, and observed that any
effort todo so invofves questions as to the scale of the chart used for the
purpose, and the somewhat arbitrary decision as to how much coast shall
be utilized in attempting to determine any "general direction", whatever.
2. With this quaIification in mind the Committee answered the above
question by hing the maximum length of any such "straight baselines"
at 10 miles.

3. In exceptional cases, especially justified by international law, the
drawing of longer lines rnay be perrnitted in regard to a particular coast.
No point, however, on such lines should be farther than 5 miles from the
coast.
4. The Comrnittee,speaking from the technical and navigational points
of view, agreed that in principle the drawing of "straight baselines"- COUNTER-MEMORIAL OF DENMARK 257

otherwise than provided for sub II for the closing line ofa bay-shouldbe
avoided as this results in an unwarranted extension of inland-waters and
undesirably throws the outer lirnit of the territorial sea further seaward.
5. Where such straight lines are justified, it should be the responsibility
of the coastal State to give adequate publicity to them.
6. The Comrnittee rejected the idea of establishing any relationship
between the length of "straight baselines" and the width of the territorial

sea.

How should the outer limit of the territorial sea be drawn, when the
width of the territorial sea is T miles?

The outer limit of the territorial sea is the line, every point of which
is at a distance of T miles from the nearest point of the baseline. It
constitutes a continuous series of intersecting arcs of circles drawn with
a radius of T miles from al1 points on the baseline. The limit of the
territoriaseais formed by the most seaward arcs (this method had been
used prior to 1930,but the terrns which were sornetimes used to convey
the sarne connotation, namely "envelopes of arcs of circles" appear to
have been not infrequently misunderstood).

How should the international boundary be drawn betweentwocountries,
the coasts of which are opposite each other at a distance of less than
2 T miles?To what extent have islands and shaIlowwaters to be accounted
for?

An international boundary between countries the coasts of which are
opposite each other at a distance of less than 2 T miles should as a general
rule be the median line, every point of which is equidistant from the
baselines of the States concerned. Unless othenvise agreed between the
adjacent States, al1islands should be taken into consideration in drawing
the median line. Likewise, dryingrocks and shoals within T miles of only
one State should be taken into account, but similar elevations of un-
determined sovereignty, that are within T miles of both States, should be
disregarded in layingdown the median Iine.There rnay,however, bespecial
reasons, such as navigation and fishing rights, which may divert the
boundary from the median line. The line should be laid down on charts
of the largest scale available, especiallyif any part of the body of water is
narrow and relatively tortuous.

How should the (lateral) boundary line be drawn through the adjoining
territorial sea of two adjacent States? Should this be done-

A. by continuing the landfrontier?
B. by a perpendicular line on the Coast at the intersection of the land-
frontierand the coastline?258 NORTH SEA CONTLNENTALSHELF

C. by a line drawn vertically on the general direction of the coastline?
D. by a rnedian line? If so, how should this line be drawn? To what extent
should islands, shallow waters and navigation channels be accounted
for?

1.After thoroughly discussing differentmcthods the Cornmittee decided
that the (lateral) boundary through the territorial sea-if not already fixed
otherwise-should be drawn according to the principle of equidistance
from the respective coastlines.
2. In a number of cases this may not lead to an equitable solution,
which should be then arrived at by negotiation.

Rernarkregardingthe Answers #O VIand VII:

The Cornmittee considered it important to find a formula for drawing

the international boundaries in the territorial waters of States, whichcould
alsobe used for the delimitation of the respective continental shelves of
two States bordering the same continental shelf,

GeneralRemark:

The Committee desired to stress that the delimitation of the outer limits
of any "contiguous zone" should be measured from the same baseline as
the territorial sea. COUNTER-MEMORIAL OF DENMARK

QUOTATION FSOM BOUNDARY-TREAD TEILSIM~TIN CGONTINENTS AHLELVES,
TERRITORIA WLATERSF ,ISHERY ZONES,STRAITSL , AKESAND RIVERS

A. CONTINENTAL SHELVES

1. Bahruin-SaudiArabia (Opposite States)
The Persian Gulf
Treaty of 22 Februav 1958 between the Kingdom of Saudi Arabia and the
Government of Bahrain for the definition of their respective rights in the off-
shore areas lying between their territories.
First Clause: "The boundary line between the Kingdom of Saudi Arabia
and the Bahrain Government will begin, on the basis of the middle line £rom
point 1, which is situated at the mid-point of the line running betwee...
Then the above-mentioned middle line will extend . . to point 2 situated at
the mid-point ... extend . .to point 3 situated at the mid-point ... extend
... to point 4... which is situated at the mid-poi.. .extend ...to point 5
... which is situated at the point of the line running between the two ..ints.
defined on the map . . . extend ...to point 6, which . . . is situated at the
mid-point ... extend. ..to point 7 situated at the mid-point.. extend ...
to point 8 situated at the western extremity of the island AI Baina As Saghir
... extend., .to point 9situated at the eastern extremity of theisland Al Baina
Al Kabir ...extend. .. to point 10 situated at the mid-poi... extend .. .
latitude . .. and longitud.. . extend...to point13.situated at Iatitud...t
and longitude. ..extend . .to point 14situated at Iatitu. ..and longitude
... Then the line will extend from point 14 in a north-easterly direc..."

Source: International and Comparative Law Quarterly, 1958,pages 519-520.
2. The Federal Replrblic of Germany-Denmark (Adjacent States)
The North Sea (partial boundary)
The full textsreproduced in English in the German Memorial, Annex 6 A.

3. Nefherlands-Denniark (Opposite States)
The North Sea
The full text is reproduced in English in the German Memorial, AnnexA.4
4. Norway-Dennaark (Opposite States)

The North Sea-The Skagerrak
The full text is reproduced inlish in the German MemoriaI, Annex 11A.
5. United Kingdom-Denmark (Opposiie States)
The North Sea
The full text is reproduced in EngIish in the German MemoriaI, Annexl12.

6. TheFederal Republic of Germany-Neiherlunds (Adjacent States)
The North Sea (partial boundary)
The full text is reproduced ingIish in the GermanMemorial, Annex 3 A.260 NORTH SEA CONTINENTAL SHELF
7. UnitedKingdonr-Nerherlands(Opposite States)

The North Sea
The full text is reproduced in English in the German Memorial, Annex 9.

8. UnitedKingàom-Norway (Opposite States)
The North Sea
The full text is reproduced in English in the German Memorial, Annex 5.

9. TheFederalRepublicof Germany-Denmark(OppositeStates/Adjacent Stafes)
The Baltic
The full text is reproduced in English in the German Memorial, Annex 7 A.

IO. U.S.S.R.-Finland(Upposite StaieslAdjacent States)
The Gulf of Finland
Swedish fext: Overenskommelse meilan Republiken Finlands Regering och
Socialistiska Rlidsrepublikernas Forbunds Regering orn gransema for havs-

omriden och kontinentalsoclcelni Finska viken, av 20.5.1965.
"Republiken Finlands Regering och Socialistiska Ridsrepublikernas
Forbunds Regering ha, ... isin onskan att faststalla havsornradena och kon-
tinentalsockeln in Finska viken, ... och rned beaktande av de i Genève 5r
1958 ingangna konventionerna om territorialhav och tillagszon samt kon-
tinentalsockel, .. overenskommit om foljande:

Artikel 1
De Avtalsslutande parterna ha overenskommit om foljande uppdragning av
sjogransen mellan Finland och SRR-Forbundet samt territorialvattengransen
mellan Finland och Sovjetunionen i Finska viken oordost om Hogland (Gog-
iand).
Sjogransen mellan Republiken Finland och SociaIistiska Ridsrepublikernas
~opbund loper fràn den àr 1940bestamda och ifredsfordraget rned Finland gr
1947faststallda sjogransens andepunkt, vars koordinater aro60" 15'35" nord-

lig latitud och 27"30'43"ostliglongitud, i en rat linjemot sydvast tillen punkt,
vars koordinater aro 60"13'42"nordlig latitud och 27" 27' 50" ostlig longitud,
vander darefter och loper i en ratlinje i viist-sydvistlig riktning till en punkt,
vars koordinater aro 60"12' 19"nordlig latitud och 27"18'01" ostlig longitud
och som skall utgora andpunkten for sjogransen mellan Finland och Sovjet-
unionen.
Gransen for Sovjetunionens territorialvatten loper fran ovannamnda and-
punkt for sjogriinsen i en rat linje i sydvastlig riktning till en punkt, vars
koordinater aro 60" 08' 49" nordlig latitud och 27" 04' 36" ostlig longitud
och som Lrbelagen pi den ar 1940bestamda och i fredsfordraget med Finland
Ar 1947 faststallda granslinjen for Sovjetunionens territorialvatten.
Granslinjen for Finlands territorialvatten Ioper fran ovanniimda Zndpunkt
for.sjogransen i en rat linje i vastlig riktning tilI en punkt, vars koordinater aro
60"12' 19" nordlig latitud och 27"13'49"ostlig longitud och som ar belagen
p& den ir 1940 bestamda och i fredsfordraget med Finland iir 1947faststallda
granslinjen for Finlands territorialvatten.

Artikel 2

De Avtalsslutande parterna ha overenskommit, att de i den del af Finska
viken, som iir belagen norrom Hogland, icke komma att utstracka sine fiske-
eller ovriga zoner over mittlinjen av det vattenomride, sorn ar belaget melian COUNTER-MEMORIAL OF DENMARK 261

Finlands och Sovjetunionens Arf940bestiimdaoch ifredsfordraget medFinland
Ar 1947 faststallda territorialvattengranser.

Artikel 3
De Avtalsslutande parterna ha overenskornmit, att de icke kornma att
utstracka sina territorialvatten eller fiske-ellerovriga zidendel av Finska
viken, Som ligger vaster om HogIand over den mittlinje, Som Ioper genorn
de punkter, vilkas geografiska koordinater aro...

Artikel 6

De i 2 och 3 artiklama av denna overenskommelse niimda linjerna utgora
granser for Republiken Finlands och Socialistiska Ràdsrepublikarnas For-
bunds kontinentalsocklar i Finska viken."
Unofficial translation. Agreement of 20 May 1965between the Government
of the Republic of Finland and the Government of the Union of Soviet Socia-
list Republics concerning the boundaries of the sea and thecontinental sheIfin
the Gulf of Finland.
"The Govemment of the Republic of Finland and the Government of the
Union of Soviet SocialistRepublics, ... desiring to delimitthe areas of the sea
and the continental shelf in the Gulf of Finland...,and having regard to the
Geneva Conventions of 1958on the Territorial Sea and the Contiguous Zone
and on the Continental SheIf ...,have agreed upon the foiiowing:

Article 1

The Contracting Parties have agreed upon the following delimitation of the
boundary of the sea between Finland and the U.S.S.R. and of the boundary
of the territorial sea between Finland and the Soviet Union for that part of the
Gulf of Fjnland which is situated northeast of Hogland.
The sea boundary between the Republic of Finland and the Union of Soviet
SocialistRepublics shall be drawn from the terminal point of the sea boundary
stipulated in 1940 and laid down in the Peace Treaty with Finland in 1947,
the CO-ordinatesof which are 60" 15'35"N and 27" 30' 43" E, in a straight
line to the southwest to a point with the CO-ordinates 60" 13'42" N and 27"
27' 50" E, thence tuming to foliow a straight line west-southwest to a point
with the CO-ordinates60"12'19"N and 27"18'01" E which shall be the ter-
minal point of the sea boundary between Finland and the Soviet Union.
The boundary of the territorial sea of the Soviet Union shall be drawn from
the above-mentioned terminal point of the sea boundary in a straight line
southwest to a point with the CO-ordinates60" 08' 49" N and 27" 04' 36"E
located on the boundary of the territorial sea of the Soviet Union as stipulated
in 1940and laid down in the Peaoe Treaty with Fjnland in 1947.
The boundary of Finland's territorial sea shall be drawn from the above-
mentioned terminal point of the sea boundary in a straight line west to a point
with the CO-ordinates60"12'19"N and 27"13'49" E located on the boundary
of Finland's territorial sea as stipulated in 1940 and laid down in the Peace
Treaty with Finland in 1947.

Article 2
For that part of the Gulf of Finland which is situated north of HogIand the
Contracting Parties have agreed not to extend their fishing zones or other262 NORTH SEA CONTINE~AL SHELF
zones beyond the median line of that part of the sea which is located between
the boundaries of the territorial sea of Finland and the Soviet Union as these

boundaries are stipulated in 1940 and laid down in the Peace Treaty with
Finland in 1947 ...
Article 3

For that part of the Gulf of Finland which is situated Westof Hogland the
Contracting Parties have agreed not to extend their territorial sea or fishing
zones or other zones beyond a median line drawn betwe...the poin....,,h the
following geographical CO-ordinates ..*. ' ' '
. . . . . . . . . . . . . . . . , . . . . . . . S . . . . .

Article 6
The lines rnentioned in the Articles 2 and 3 in this agreement establish the
boundaries of the continental shelves of the Kepublic of Finland and the
Union of Soviet Socialist Republics in the Gulf of Finland."
Source: FinlandF sorfattningssarnI l;ingdsragsse r ie,,No. 20, page 121.

II. U.S.S.R.-Finland (OpposisSetates)
The northeastern. part of the Baltic
Swedish fext: Overenskommelse mellan Republiken Finlands Regering och

Socialistiska Radsrepublikernas Forbunds Regering om gransen for kon-
tinentalsockeln meIlan Finland och Sovjetunionen i den nordostra delen av
~stersjon, av 5.5.1967.
"Republiken Finlands Regering och Socialistiska Ridsrepublikernas For-
bunds Regeringha, ... insin onskan att faststallagransenfor kontinentalsockeh
i den nordostra delen av bstersjon, .. . med beaktande av den i Genève Ar
1958 avslutade konventiooen om kontinentalsockel, ... overenskommit om
foljande:

Artikel 1
De Avtalsslutande parterna har overenskornrnit om att gransen for kon-
tinentalsockeln mellan Republiken Finland och Socialistiska Ridsrepubliker-
nas Forbund i den nordostra delen av ~stersjon, p& omridet, Som utstracker

sig fran linjen Hangoudd-Osmussaari-Poosaspaa vasterut anda till linjen
mellan det finska navigationsrnirket p5 skaret Grimsorarna och den sovjetiska
fyren Ristna pi Dago, utgores av mittiinjen .. ."
Unoficial transLatiA ongreement of 5 May 1967 between the Government
of the Republic of Finland and the Government of the Union of Soviet Socialist
Republics concerning the boundary of the continental shelf between Finland
and the Soviet Union in the northeastern part of the Baltic.
"The Government of the Republic of Finland and the Government of the
Union of Soviet Socialist Republics,. ..desiring to delimit the continental shelf
in the northeastern part of the Baltic ,.. and having regard to the Geneva

Convention of 1958on the Continental Shelf .. .have agreed upon the follow-
ing :
ArticIe 1

The Contracting Parties have agreed that the boundary of the continental
shelf between the Republic of Finland and the Union of Soviet Sacialist
Republics in the northeastern part of the Baltic in the area from the line
Hangoudd-Osmussaari-PWsp%i westward to the line between the Finnish COUNTER-MEMORIAL OF DENMARK 263

buoy on the Grimsorarna rock and the Soviet lighthouse Ristna on the isIand
Dago shall be the rnedian line . .."

Source: Rigsdagsproposition, No, 129, 1967.
12. Belgium-United KingdomlFrancelThe Netherlands
(Opposite States/A~$acent States)
The North Sea
Billconcerning the continental shelf of Belgium,introduced to the Chamber
of Representatives on 23 October 1967.

Article 2
"La délimitation du plateau continental belge vis-A-visdu plateau con-
tinental du Royaume-Uni de Grande-Bretagne et d'Irlande du Nord est cons-
tituéepar la ligne médianedont tous les points son équidistantsdes points les
plus proches des lignesde base h partir desquelles est mesuréela largeur de la
mer territoriale de la Belgiqueet du Royaume-Uni. Cette délimitationpeut être
aménagéepar un accord particulier.
La délimitationdu plateau continental vis-à-vis des pays dont lescôtes sont
adjacentesaux côtes belges,c'est-à-dire la Franceet lesPays-Bas,est déterminée
par application du principe de l'équidistance despoints les plus proches des
lignesde base lipartir desquellesest mesurée la largeurde la mer territoriale de
chacune des puissances intéresséesC. ette délimitationpeut êtreaménagéepar
un accord particulier avec la puissance intéressée."

Source: Projet de loi, 471 (1966-1967)-no 1.
The Billand its "Exposé des Motifs"are reproduced inAnnexes 14and 14A.

B. TERRITORIAL WATERS

1. Italy-Trieste (Adjacent States)

Treaty of Peace with Xtaly,dated at Paris 10 February 1947.
Article 4: "... (ii) nie line then extends in southerly direction to a
point, in the Gulf of Panzano, equidistant frorn Punta Sdobba at the mouth
of the Isonzo (Soca) river and CastelIo Vecchio at Duino, ... (iii) The line
then reaches the high seas by following a line placed equidistant from the
coastlines of ltaly and the Free Territory of Trieste."

Source: Treaty of Peace with Italy, TIAS No. 1648,page 130.
2. Yugoslavia-Trieste (Adjacent States)
Treaty of Peace with Italy, dated at Paris 10February 1947.

Article 22: "... (iv)Thence the line follows the main improved channel of
the Quieto to its mouth, passing through Porto del Quieto to the high seas by
foIlowing a line placed equidistant from the coastlines of the Free Territory of
Trieste and Yugoslavia."
Source: Treaty ofPeace with Italy, TIAS No. 1648,page 138.
3. Italy-Turkey (Opposite States)
The temtorial waters between the coasts of Anatolia and the island of

Castellorizo.
Convention between Italy and Turkey for the deIimitation of the territorial
waters between the coasts of Anatolia and the island of Castellorizo, signed
at Ankara on 4 January 1932.264 NORTH SEA CONTINENTAL SHELF
Article 5:".. .agreed to delirnit the territorial waters as follows:
To the East: From a point situated halfway between Cape San Stephano
... and Cape Gata;
Thence in a straight line to a point situated halfway between Psomi and

PrFrom this point in a straight line to a point situated halfway between Mavro-

Points and Proussecliss;"
Source: League of Nations Treaty Series, Vol. 138(1933),page 243.
4. Mexico-Belice (British Honduras) (Aàjacenf States)

Off the bay of Chetumal in the Caribbean Sea
Letter of 2 March 1967 to the Mexican Ministry of Naval Affairs from
Ambassador Castaneda, chief of the multilateral political department in the
Mexican Ministry of Foreign Affairs in reply to a request for information of
the method which ought to be applied by the determination of the maritime
boundaries towards U.S.A., Guatemala and Belice:
Sp~nishtext: "El trazo de la frontera de los mares territoriales y zonas
contiguas entre Méxicoy Belicepuede hacerse de acuerdo con Io estipulado en
el articulo 12de la Convention de Ginebra, sin ningun problema prhctico ..."

Unofficialtranslation: "The delimitation of the boundaries of the territorial
waters and the contiguous zones between Mexico and Belice can be made in
accordance with Article 12 of the Geneva Convention without creating any
practical problem ..."
5. Norway-Finland(Adjacent States)

The Varangerfjord
In the introduction to the Parliament (Storting) Proposition No. 63 (1957)
concerning the consent of the Parliament (Storting) to the ratification of the
agreement between Norway and U.S.S.R. concerning the off-shore boundary
in the Varangerflord, it is stated:
Norwegian zext: "Traktatforholdet vedrarende fellesgrensen mellom Norge og
Finnland ble ordnet ved en overenskomst rnellom de to land av 28. april 1924.
1denne overenskomst ble det besternt at delelinjen mellom de to lands sjaterri-
torier skulle trekkes slik at ethvert punkt pAlinjen làlikelangt fra de to staters
kyster ..."

Unoffcial translarion:"The delimitation of the boundary between Norway and
Finland was soIved through an agreement between the two countries on
28 April 1924.According to this treaty it was determined that the line dividing
the territorial sea between the two countries should be drawn in such a way
that every point on the line should be situated at the same distance from the
coasts of the two States ..."
Source: Stortingsproposition,nr.63 (1957),page 1,col. 1.
Article III of this Treaty reads:

"From the point where the channel ends in the Arctic Ocean beyond the
mouth of the Jakobselv (Vuoremajoki) the dividing line between the territorial
waters of the two Contracting States shall be drawn in such a way that any
point on the said line shall be situated at an equal distance from the coasts
of the two States, measured from the nearest point on the mainland, islands,
islets or reefs which is not perpetually subrnerged."
Source: Soc. des Nat. Rec. des Tr.,Volume XXX, No. 758. COUNTER-MEMORIAL OF DENMARK 265

6. Norway-U.S.S.R. (Adjacenf States)
The Varangerfjord

Agreement between the Royal Norwegian Govemment and the Government
of the Union of SovietSocialistRepublicsconcerning the sea frontier between
Norway and the U.S.S.R. in the Varangeroord, signed at Oslo, on 15February
1957.
The boundary between the territorial waters of the SovietUnion and Norway
in the Varangerfjord is determined by straight lines connecting three points
laid down on different principles. The first is the point where the landfrontier
meets the sea, the second isthe point of intersection of Norwegian and Soviet
territorial waters, while the third point-the outermost-is an equidistance
point.
The provisions are as follows:
Article 1: "The sea frontier between Norway and the Union of Soviet
Socialist Republics in the Varangerfjord shail foilow a straight line from
frontier mark No. 415 (spar buoy), which is the terminal point of the frontier
drawn in 1947, to the intersection of the outer limits of the Norwegian and
Soviet territorial water...
Neither of the Contracting Parties shall extend its territorial waters beyond
the straightlineextending fromthe intersection referred to in the first paragraph
of this article to the rnedian point of the line between Cape Nernetsky and Cape
Kibergnes . .."

Source: UnitedNations Treaty Series, Volume 3 12 (1958),page 322.
7. Tanzania-Kenya(Adjacent States)

The territorial waters between the coast of Kenya and the island of Pemba
Proclamation by the President of the United RepubBc of Tanzania, signed
on 30 March 1967,published as Government Notice No. 137on 14April1967 :
"... the territorial waters of the United Republic of Tanzania extend across
the sea a distance of twelve nautical miles... Provided that in respect of the
island of Pemba where the distance between the baseline measured on Pemba
and the rnainland of Kenyais lessthan twenty-fournautical miles,the territorial
waters of the United Republic of Tanzania extend up to the median line every
point of which is equidistant from the nearest points on the baseline between
Pemba and the mainlandofKenya ..."

8. United States-Canada (AdjacentStates/Opposite States)
Passamaquoddy Bay
Treaty between the United States and Great Britain in respect of the Bound-
ary between the United States and Canada of 24 February 1925.
Article 3: "... The Contracting Parties, . .. hereby agree that an additional
course shall be extended [rom the terminus of the boundary line definedby the
said Treaty of 21 May 1910,south 34"42'west, for a distance of two thousand
three hundred eighty-three (2,383)meters, through the midd1eof Grand Manan
Channel, to the High Seas."

Source: AICN.4171and Add. 1-2 printed in Yearbook of the I.L.C., 1953,
Vol. II, page 86.
9. United States-Canada (AdjacentStates)
Pacific Ocean coast
Convention between the United States and Great Britain relating to the
Canadian International Boundary of Il April 1908. COUNTER-MEMORIALOF DENMARK

12. Mexico-Gilatetnala (Adjacent States)
Off the mouth of the river Suchiates in the Pacific Ocean
(a] Boundary treaty between Mexicoand Guatemala of 27 September 1882
(Article 3). '

Spanish text: "Los limites entre las dos naciones seran a perpetuidad los
siguientes . . La linea media del rio Suchiate, desde un punto situado en el
rnar a tres leguas de su desembocadura, rio arriba, por su canal mas pro-
fundo . . ."
-officia1 translation: "The boundaries between the two nations shall in
perpetuity be the following ... The median line of the river Suchiates from
a point in the sea three miles from the mouth of the river and upstream fol-
lowing its deepest channel ..."
(b) Letter of 2 March 1967 to the Mexican Ministry of Naval Affairs from
Ambassador Castaneda in the Mexican Ministry of Foreign Affairs referring
to the said Article 3:

Spanish text: "... Por 10 tanto, el procedimiento téchnicoseguir en este
caso es el que a continuacion se describe: ... Esta recta seria la frontera de los
mares territoriales. En términogenerales, puede afirmarse que dicha linea serA
perpendicular ala direction general de la costa en ese trarno y deber6 coincidir,
exactamente, con la desembocadura del rio al rnar."
Unoficial translation:"Therefore, the technical procedure to be followed in
thiscaseisas described below :... Thisperpendicularline shall form the bound-
aryin the territorial sea. In general termsit can be said that the line rnentioned
will be perpendicular to the general direction of the Coastin this area and will
exactly coincide with the mouth of the river."

13. Senegal-PortugueseCrrinea(AdjacenbStates)

Decree No. 60-504 of 25 May 1960issued by the Government of France,
published in Journal Oficiel du Mali dated 20 August 1960 transforming into
law an agreement between France and Portugal on the delineation of a part of
the Senegal-Portuguese Guinea border.
Up to the lirnit of the territorial waters, the border "will be defined by a
straight line, oriented to 240 degrees, departing from the point of intersection
of the extension of the land border and the low-water mark, represented in this
case by the CapeRoxo lighthouse.
In that which concerns the contiguous zone of the continental shelf, the
delimitation will be constituted by the rectilineal prolongation, in the same
direction, of the border between the territorial waters."

Source: Whiteman, Marjorie M., Digest of InternafionalLaw, Volume 4,
Washington 1965, page 335.

14. Hong Kong-China(Opposite SfateslAdjacent States)
Convention between Great Britain and China, respecting an Extension of
Hong Kong Territory signed at Peking on 9 June 1898 and Boundary Deter-
mination of 14 March 1899.
International BoundaryStudy, NO. 13 (April 1962) (prepared by the Geo-

grapher, Officeof Research in Economics and Science,Bureau of Intelligence268 NORTH SEA CONTINENTAL SHELF

and Research, Dep. of State, Washington), p. 4, describes the boundaryinthe
folIowingway :
"The Northern Boundary commences at the point of highwater-mark in
Mirs Bay where the rneridian of 114"30' East cuts the land and follows that
highwater-mark to the point marked with a peg immediately to the west of the
market town . .. hat'aukok. It then proceeds straight inla...The boundary
then follows the right or northem bank of the river generally known as the
Sham Chun river down ta Deep Bay, al1the river and the land to the south
being within British territor...
. . . . . . . . . . . . a . . . . . - . . . . . . . . . .

The waters of Mirs Bay and Deep Bay are iicluded in the area leased to
Great Britain."
C. FISHERY ZONES

EQU~ISTANCPE R~NCIPLE
TheEuropeanFisheries Convention(Opposire Stabes/AdjacentStates)

Convention between Austria, Belgium, Denmark, the French Republic, the
Federal Republic of Gerrnany, Ireland, Italy, Luxembourg, the Netherlands,
Portugal, Spain, Sweden and the United Kingdom of Great Britain and
Norihem Ireland, signed in London on 9 March 1964.
Article 7: "Where the coasts of two Contracting Parties are opposite or
adjacent to each other, neither of these Contracting Parties isentitled, failing
agreement between them to the contrary, to establish a fisheriesrégimebeyond
the median line, every point of which is equidistant from the nearest points
on the low water lines of the coasts of the Contracting Parties concerned."
Source: Treaty Series, No. 35 (19661,London.

D. STRAlTS

MEDIAN LINE
1. Demark-Sweden (Opposite States)
The Sound (Northern and Southem Part)
Danish texf:Deklaraiion .. .og Noteveksling angaende Grænseforholdene
i Sundet af 30.1.1932.
". .. 1 Sundets nordlige del fra den nordlige grænselinie til pladsen for
Lous Flak Lys- og Fl~jtetande 55" 49' 36"N, 12"43' 42" E gar linien midt
irnellem Sjællands kyst og svensk fastland .. .Herfra (55"29' 19" N, 12"
43' 6"E) drages Iinien videre til sydgrznsen efter tilsvarende reglsom for
Sundets nordlige del, idet den pi denne strækning dog dannes af rette iinier
besternt ved fdgende punkter. .."

linoficial trans!otion:Declaratio...and exchange of Notes of 30 January
1932,concerning theboundary in the Sound.
"... In the northern part of the Sound from the northern boundary line to
the location of the light- and whistle-buoy at Lous Flak (55" 49' 36"N, 12"
43' 42"E) the line runs haifway between the Coastof Zealand and the Swedish
mainland. From this point (55"29' 19"N, 12" 43' 6"E) the line is drawn to the
southern boundary according to the same principles used in the northern part
of the Sound, although this part of the boundary consists of straight lines laid
down between the following points .. ."

Source: DanishLaw Garetfe, A 1, 1932, page 67. COUNTER-MEMORIALOF DENMARK 269

2.Malaysia-Indonesia (OpposifeStates)
Tarnboe and Sikapal Channels
Agreement between the United Kingdom and the Netherlands relating to the
boundary between the State of North Bomeo and the Netherlands possessions
in Borneo of 28 September 1915.
International Boundary Ssudy, No. 45 (March 1965), page 6, describes the
boundary iri the following way:

"... After the island of Sebatik is divided, the boundary crosses the waters
between the island and the mainland in a sinuous line followingthe median of
the Tamboe and Sikapai channels to the Sikapal range which forms the water
divide between the Serudong and Simengaris rivers."
Text of the Agreement published in Lagemans'Recueildes traités et conven-
tionc soncluspar le Royaume des Pays-Bas, Volume 18, No. 1100.
3. Morocco-Spain (Opposite States)

The Strait of Gibraltar
Note Verbale of 20 May 1967 from the Moroccan Ministry of Foreign
Affairs to the Danish Embassy in Rabat: .
"... Sur les côtes de notre Royaume baignéespar le détroit de Gibraltar,
les eaux territoriales marocaines s'étendentau point de vue de la pêche, à
6 millesmarins comptésde la laissede bassemer, sanstoutefois que cettelimite
s'étendeau-delàdela lignemédianedu détroit deGibraltar dont tous les points
sont équidistants des points les plus proches des côtes espagnoles et maro-
caines .. ."

4. United States-Canada (Opposite States)

Juan de Fuca Straits
Treaty between the United States and Great Britain, as regards the Juan de
Fuca Straits of 15June 1846:
". .. the line of boundary between the territories of the United States and
those of Her Britannic Majesty shall be continued westward along the said
forty-ninth parallel of north latitude to the middle of the channel which sep-
arates the Continent from Vancouver's Island; and thence southerly through
the middle of the said channel, and of Fuca's Straits to the Pacific Oce..."
Source: Whiteman, Marjorie M., Digest of International Law, Vol. 4
(1965), pages 309-310.

5.Singapore-Johore (OpposifeStates)

Johore Strait
The Straits Settlementsand Johore Territorial Waters (Agreement) Act, 1928,
of 19 October 1927.
Article 1:"The boundary between the territorial waters of the Settlement of
Singapore and those of the State and Territory of Johore shall, except as
hereafter specified in this Article, be an imaginary line following the centre
of the deep-water channel in Johore Strait ... Where, if at all, the channel
divides into two portions of equal depth running side by side, the boundary
shall run midway between these two portions."
Source: Whiteman, Marjorie M., Digest of Internarional Law, Vol. 4
(1965),page 311. NORTH SEA CONTINENTAL SHELF
E. LAKES

1. Congo-Burundi(Opposite Stateslrldjucent States)

Lake Tanganyika
Convention of 11 August 1910 confirming the arrangement signed in Brussels
on 10 May 1910laying down the boundary between German East Africa and
Belgium Congo.
Protocol respecting the Boundary between Tanganyika Territory and the
Belgian Mandated Territory of Rwanda-Urundi, of 5 August 1924.
Interitational Boundary Study, No. 48 (April 1965), page 1, describes the
boundary in the following way:
". ,.from the Tanzania tripoint, it foliows the median line of Lake Tangan-

yika.. ."
2. Congo-Tanzania (Opposite States)

Lake Tanganyika
Convention of 11August 1910confirrningthe arrangement signed in Brussels
on 10May 1910laying down the boundary between German East Africa and
Belgium Congo.
International Boundary Study, NO. 51 (June 1965)p ,age 1, describes the
boundary in the following way:
"The Congo (Léopoldvil1e)-Tanzaniaboundary is the median line of Lake
Tanganyika . . ."

3. Congo-Wganda(Opposite StareslAdjacent States)

Lake Albert
Agreement between Belgium and the United Kingdom ... respecting
Boundaries in East Africa of 3 February 1915.
Article 2: "A succession of straight lines, as shown on the maps, across
Lake Albert, passing through thepoints situated midway between the shores of
the lake on theparallels of 30f,1"45' and 2"north latitude, to a point midway
between the shores of the lake on the parallel 2" 7' north latitude."
Source: Jones, Stephen B.,Boundary-Making, Washington, 1945,page 141.

4. Switzerlond-France (Opposite States/Adjacent States)
Lac Léman

Convention of 25 February 1953between SwitzerIandandFrance concerning
the determination of the frontier in Lac Léman.
Article 1: "Le tracé de la frontière dans le lac Lémanest formé par une
ligne médianeet par deux ailes transversales à Hermance et A St-Gingolph.
La ligne médianeest définiethéoriquement par les lieux des centres des
cercles inscrits entre les rives suisseet française.
Cette lignethéoriquese trouve cependant remplacée,pour des raisons prati-
ques, par une ligne polygonale de six côtésqui réalisela compensation des
surfaces."
Source: Message No 6506 du Conseil fédérala l'Assembléefédéralesur
l'approbation de trois conventions relativekdes modifications de la frontiere

franco-suisse(du 14septembre 1953). COUNTER-MEMORIALOF DENMARK 271

5. Switzerland-Itab (A4cent States)

Lago di Lugano, Lago di Maggiore
Note Verbale of 30 March 1967 from the Swiss Ministry of Foreign Affairs
(Département Politique Fédérai)to the Danish Embassy in Berne:
"En ce qui concerne les lacs de Lugano et Majeur, la frontière suitle milieu
deseaux, en vertu du traitédit de Varèse,du 2 août 1752,entre les 12Cantons
de l'Alliancehelvétiqueet S.M. l'ImpératriceMarie-Thérèse."

6. Switzerlmd-Austria-Federal Repriblicof Germany
(Opposite StateslAdjacent States)
Lake Constance
Note Verbale of 30 March 1967from the Swiss Ministry of Foreign Affairs
(Département Politique Fédéral)to the Danish Embassy in Berne:
". . . Pour cequia trait aulacdeConstance, aucune convention n'a étésignée
au sujet de la délimitationde la frontière entre les Etats riverains. La Suisse
s'en tient, dansce cas aussi, au principe dela frontiéreau milieu du lac. Il
existe cependant une autre thèse, soutenue notamment par l'Autriche, selon
laquelle le Iac de Constance serait soumis à la souveraineté commune des
Etats riverain..."

7. Tanzania-Zambia (Opposite StateslAdjacenf States)
Lake Tanganyika
International Boundary Stady, No. 44 (March 1965)p, age 5, describes the
boundary in the following way:

"The segment of the Tanzania-Zambia boundary in Lake Tanganyika
commonly is drawn on maps as an arc which trends southwestward and then
northward to attain the median line of the lake as rapidly as possible after
leaving the mouth of the Kalambo."
8. United States-Canada (Opposite States)
Lake Ontario
Boundary between Great Britain and the United States as laid down in
Treaty of Peace concluded at Paris on 3 September 1783 and definedin Report
of the International Waterways Commission upon the international boundary
between the Dominion of Canada and the United States through the St. Law-
rence River and Great Lakes (1915):

". . . THENCE due West 501,388 feet along the middle of Lake Ontario to
Turning Point No. 107 in ... THENCE ... 150,480 feet along the middle of
Lake Ontario to Turning Point No. 108 ..." (cf. the above-mentioned Report,
p. 55).
9. United States-Canada (Opposite States)

Lake Erie
Boundary between Great Britain and the United States as laid down in
Treaty of Peaceconcluded at Paris on 3 September 1783and definedin Report
of the International Waterways Commission upon the international boundary
between the Dominion of Canada and the United States through the St.
Lawrence River and Great Lakes (1915):
".. ,THENCE . .. 19,064feet along the middle of Lake Erie to Turning Point
No. 155 ... THENCE .. ,346,460feet along the middleof Lake Erie to Turning -
Point No. 156 ..." (cf. the above-mentionedReport, p. 66). 272 NORTHSBA CONTINENTAL SHELF

10. UnitedStates-Canada (Opposite States)
Lake Huron
Boundary between Great Britain and the United States as laid down in
Treaty of Peac. concluded at Paris on 3 September 17and defined in Report
of the International Waterways Commission upon the international boundary
between the Dominion of Canada and the United States through the St. Law-
rence River and Great Lakes (1915):

"... THENC E..225,118 feet along the middle of Lake Huron to Turning
Point No. 216 ...THENC E.. 645,430 feet along the middle of Lake Huron
toTurningPoint No. 217 .. ." (cf. the above-mentioned Report, pp. 81-82).
THALWEG
JI. Burttndi-Rwanda(Opposite StateslAdjacent States)

Lake Cohoha
Order No. 211258of 14August 1949establishingthe territorial organisation
of the Territory of Rwanda-Urundi:
". . the thalweg of the aforesaid lake to the outlet of the overfiow named
Kamahozi ;"
Source: International BoundaryStudy, No. 72 (June 1966),page 3.

STRAIGHL TINES
12. Burundi-Rwanda(Opposite StateslAdjacent States)

Lake Rweru (Rugweru)
Order No. 211258of 14August 1949establishing the territorial organisation
of the Territory of Rwanda-Urundi:
". .. a straight Iine through the aforesaid lake (Rweru) to the mouth of a
tributary river (Agatete) on the lake which runs between the hills Songwa
(Rwanda) and Mulehe (Urundi);"
Source: InternationalBoundaryStudy, No. 72 (June 1966) page 2.

13. Chile-Peru(Oppusire StateslAdjacent Sfates)
Laguna Blanca
Final Act of 5 August 1930 concerning the determination of the frontier
(Lima, 1930):
"...number 69-17" 39'40.8", 69"40'21.7"-Southwestern point of Laguna
Blanca. Number 70-17" 37' 24.8", 69" 37' 3I.Ba-Northeastern point of
Laguna Blanca . .."

Source: International BoundaryStudy,No. 65 (February 1966),page 12.
ALONG ONE OF THE SHORES

14. Malawi-Tanzania (Opposite StateslAdjacent States)
Lake Nyasa
Agreement between the British and German Governments, respecting
Africa and .. of 1 July 1890.
InternationalBoundaryStudy, No. 37 (October 1964),page 4, describes the
boundary in the following way:
"In accordance with the terms of Article 1of the Anglo-German agreement
of 1890,the boundary from the Mozambique tripoint on the eastern shore of
-Lake Nyasa strikes northward and follows the eastern, northern, and western
shores of the lake." COUNTER-MEMORIALOF DENMARK

The non-navigable boundary rivers
Frontier Agreement between Afghanistan and the Soviet Union of 13June
1946.

In~ernationalBoundary Study, No. 26 (December 1963), page 5 describes
the boundary in the following way:
"Article1 provides that the international boundary shall follow the main
channel ofthe Arnu Darya (Oxus) and the Pyandzh to the head of navigation,
and above this point, the median line."

2. Argentine-Uruguay
The Uruguay River between Brasilera Island and Salto Grande
Treaty of Boundaries between the Republic of Uruguay and the Argentine
Republic in the Uruguay River of 7 April 1961.
Article I (A): "Frorn ... the southwestern point of Brasilera Island to the
Ayuf area (the contour where the Salto Grande dam will be constructed), the
boundary shall follow the center line of the river's present bed."

Source: InternationadBoundary Study, NO.68(March 1966),page 2.
3. China-Vietnam

Convention relative to the frontier between China and Tonkin of 26 June
1887 and Convention bearing on the delimitation of the frontier between
France and China of 30 June 1895.
International Boundary Study, No. 38 (October 1964),page 5, describes the
boundary in the foiiowing way:
"Turning eastward, the frontier follows minor watersheds but cuts the head-
watersof severalsmallstreams to approxirnately 22"39'North and 106"29'East.
Here itjoins the rnedian linof several srnall streams. After followingthese for
approximately IOmiles, the boundary continues eastward in a series of short,
straight line segments to the source of the Pei-lun Ho. The median line of this
river formsthe boundary for the approximately 37miles to the Gulf of Tonkin."

4. Czechoslovakia-Hmgary
Non-navigable rivers
Treaty of Peace between the Allied and Associated Powers and Hungary
and Protocol and Declaration of 4 June 1920.
International Boundary Study, No. 66 (March 19661,page 6, describes the
boundary in the following way:

"Article 30 stated that where the terms 'course' or 'channel' wereused to
delimit the boundary in a waterway, they equated with the median line in non-
navigable waterways .. ."
5. Greece-Tirrkey

The Maritsa River
Treaty of Lausanne between Turkey and various Ailied Powers of 24 July
1923 (Art. 2).
International BolrndcrrSfudy No. 41 (Novernber 1964),page 6, describes the
boundary in the foilowing way :274 NORTH SEA CONTINENTAL SHELF

"Returning to the median line of the Maritsa, or of its principal channel, the
boundary continues southward .. .Thence the boundary follows the median
of Maritsa, a distance of 24.2 miles at which point the river divides into a
western and eastem branch, the boundary following the eastern, principal
branch."
6. Honduras-Nicaragua
Westerly rivers (Negro, Guasaule, Torondano)
Acts of the Mixed Commission regarding the boundary between Nicaragua
and Honduras, 1900-1901.
InternationalBoundary Sfudy, No. 36 (October 1964),page 4, describes the
boundary in the following way:

"...From . ..Arnatillo thelinecontinuesalong the center of the said river
Negro upstream . ..to its confluence with the river Guasaule, also upstrearn,
to its union with the river Torondano ...from the meeting of these two rivers
the linecontinues afong the center of the river Torondano to its confluence with
the Quebrada Grande. "
7.Hungary-Rum~nia

Non-navigabte rivers
Treaty of Peace between the AIlied and Associated Powers and Hungary
and Protocol and Dedaration of 4 June 1920.
lnrernationalBoundaryStudy, No. 47 (April 1965), page 6, describes the
boundary in the following way:
"Article 30 stated that where the terms 'course' or 'channel' were used to
define the boundary in a watenvay, they equated with the rnedian line in non-
navigable waterways ..."
8. Rumania-U.S.S.R.

Non-navigable rivers
Treaty of 27 February 1961 :
"... the boundary line passiag through non-navigabIe rivers, streams and
channels shall follow any shifts that may occur on the median line ..."
Source: InternationalBoundaryStudy, No. 43 (December 19641,page 9.

9. SouthernRhodesia-Zambia
The Zambezi River
The Northern Rhodesia and Southern Rhodesia (Boundaries) Order in
Council of 20 December 1963.
InternationalBoundaryStudy, No. 30 (March 1964), page 3, describes the
boundary in the following way:
"The Ordet in Council, in eKect, delimits the boundary by the medium
filurn(rnedianline) of the Zambezi, the medium filum between a specificshore
and enumerated islands or the medium filurn between specifiedislands."

IO. Switzerland-
Certain boundary rivers
Note Verbale of 30 March 1967from the Swiss Ministry of Foreign Affairs
(Département Politique Fédéral)to the Danish Embassy in Berne:
"... Le tracésur lescours d'eau formant la frontièreentre les cantons suisses
ou entre la Suisseet les Etats limitrophes suit en règlegénérale milieu du lit
ou, parfois, le thalweg." COUNTER-MEMORIALOF DENMARK 275

Non-navigable rivers
Agreement between the British and German Governments respecting Africa
and ...of 1July 1890.
Interrrational Boundary Study, NO. 44 (March 1965), page 1, describes the
boundary in the following way :
"In streams comprising the boundary, the line follows the thalweg where it
can be distinguished and the rniddle of the Streambed atherwise."

THALWEG

12. Afghanistan-U.S.S.R.
Navigable rivers
Frontier Agreement between Afghanistan and the Soviet Union of 13June
1946.
Internatio,zal Boundary Study, No. 26 (December 1963), page 5, describes
the boundary in the following way:
"Article 1 provides that the international boundary shalI follow the main

channel of the Amu Darya (Oxus) and the Pyandzh to the head of navi-
gation .. ."
13. Argentine-Uruguay
The Uruguay river between SaltoGrande and Punta Gorda
Treaty of Boundaries between the Republic of Uruguay and the Argentine
Republic in the Uruguay River of 7 April 1961:

Article 1 m.1.): "From Ayui to a point situated in the area of bifurcation of
the Filomena and El Medio channels, the boundary shall follow a line that
coincides with the centre of the main navigation channel...
..........................
(Ila):... One line shall coincide with the center of the Filornena Channel
(main navigation channel) ...
.............................
(III): From the point of the confluence of the Filornena and El Medio
channels to the Punta Gorda paraIlel, the lines shall again be unitedaisingle
boundary line for al1purposes, which shall coincide with thcenter of the main
navigation channel."
Source: International BoirndaryStudy, No. 68 (March 1966),page 3.

14. British Honduras-Guatemala
Boundary treaty between the Republic of Guatemala and Great Britain,
signed in Guatemala City on 30 April 1859.
Article 1:". .. theboundary between theRepublic and theBritish Settlements
and Possessions ...is as follows:
Beginningat themouth oftheriver Sarstoon(Sarstun) in the Bay of Honduras,
and proceeding up the mid-channelthereof to Gracias 6,Dias Falls; ..."
Source: International Boundary Siudy, No. 8 (July 1961),page 1.

15. Brrrma-Laos
Mekang River
Declaration relative to the delimitation of French and English possessions
aIong the frontiers of the Kingdom of Siam made on 15January 1896.276 NORTH SEA CONTINENTAL SHELF

Article 3: "A partir de l'embouchure du Nam-Huok et en remontant vers
le nord jusqu'h la frontièrchinoise, le thalweg du Mékong formera la limite
despossessionsou sphèresd'influencedelaFrance et delaGrande-Bretagne . .."
Source: International Boundar yttldy,No, 33 (June 1964),page 4.

The boundary rivers north of the town of 'Marang
Exchange of Notes ... regarding the boundary between Burma and Siam
of 1 June 1934.
International Boundar ytudy, No. 63 (Febmary 1966),page 6,describes the
boundary in the following way:
"The same principle (Le., thalweg) was extended to the Pakchan River.
Specificaiiy,'the deep water channel of the River Pakchan, wherever it may
be, should always be accepted as the boundary ...(in) that part...from the
. .,village of Nlarang northwardsasfar as said river forms the boundar. ..'."

17. Buriindi-Congo

Rusizi-river
Convention of 11August 1910confirrningthe arrangement signed inBrussets
on 10 May 1910laying down the boundary between Gerrnan East Africa and
Belgium Congo :
"The boundary, leaving the median line of Lake Tanganyika, curves in
order to followthethalweg of the main westernbranchof the Russisi (Rusizi or
Ruzisi) delta as far as the northern tip of the delta. It then takes the thalweg
of that river to the point where it flows out of Lake Kivu."
Source: InternaiionalBoundary Sfudy, No. 48 (April 1963, page 3.

Navigable rivers
Treaty of Peace between the Allied and Associated Powers and Hungary
and Protocol and Declaration of 4 June 1920.
International Boundary Study, No. 66 (March 1966),page 6, describes the
boundary in the following way:
"...Article 30stated thatwhere the terms 'course' or 'channel'were used to

navigable ones."dary in a waterway, they equated with ... the thalweg in

19. The Federa Republicof Gerrnany-France
The Rhine
Treaty between Germany and France concerning the delimitation of the
frontier, of 14 August 1925.

Article 16: "Sur la sectionde la frontièreentla France et le Paysde Bade,
lalimite de souverainete est déterminéesur le Rhin par l'axe du thalweg.
L'axe du thalweg est la suite ininterrompue des sondes les plus profondes."
Source: Reichsgesetzblatr,Teil II, 1927,page 959.
20. Iran-Iraq

Shatt El Arab (from Chatile to Abadan)
Treaty concerning the delimitation of the frontier between Iraand Iraq of
4 July 1937.
Article 2: "La ligne frontière commence au point le plus avancé de i'ile COUNTER-MEMORIAL OF DENMARK 277
Chatile ...se poursuit perpendiculairement au niveau des eaux lesplus basses,
rejoint le thalweg du Chatt Ei Arab jusqu'à un point situéen face de la jetée
actuelle No 1d'Abadan .. ."

21. Laos-Thailand
The rivers Nam Heung Nga, Nam Heung and Mekong
Convention for the Regulation of Relations between Siam and Indo-China
of 25 August 1926.
InfernationalBoundary Sfudy, No. 20 (September 1962),page 1,describes the
boundary in the following way:
"At approximately ... the boundary leaves the water divide to follow the
thalweg of the Nam Heung Nga and the Nam Heung to the latter's con-
fluencewith the Mekong. ...For the next 541miles the Laos-Thailand bound-
aryis defined by the thalweg of the MekongRiver where no islandsexist, or the
thalweg closest to the Thaishore whereislands are to be found in the r. .."

Rovuma River
Exchanges of Notes between His Majesty's Government in the United
Kingdom and the Portuguese Government regarding the Boundary between
Tanganyika Territory and Mozambique, 11 May 1936-28December 1937:
"Throughout the course of the River Rovuma in those places where there
are no islands, the boundary shall follow the thalw..."

Source: International BoundaryStudy, No. 39 (October 19641,page 4.

The rivers Pasvikelv and Jakobselv
Final Protocol of the Mixed Soviet-NorwegianCommission of 18Decernber
1947.
InternationalBoundary Siudy, No. 24 (December 1963),page4, describesthe
boundar yn the following way:
"... The major modificationwas the specification of the thalweg in the two
rivers rather than the previous 'median line of the channel'."

Navigable rivers
Treaty of Peace between the Allied and Associated Powers and Hungary
and Protocol and Declaration of 4 June 1920.
International Boundary Study, No. 47 (April 1965), page 6, describes the
boundary in the foilowing way:
"... Article 30 stated that where the terms 'course' or 'channel' were used
to dehe the boundary in a waterway, they equated with ... the thalweg in
navigable ones."

Navigable rivers
Convention concerning the settlement of questionsarising oofthe delimita-
tion of the frontier between the Kingdom of Rumania and the Czechoslovak
State of 15July 1930and other acts.
International BoundaryStudy, No. 43 (December 1964), page 9, describes
the boundary in the following way:278 NORTH SEACONTINENTAL SHELF

"The ... Rumania-U.S.S.R. boundary is completely demarcated- by ...
or C)the thalwegs of navigable rivers."

26. Rwanda-Congo

Rusizi River
Convention of Il August 1910confirmingthe arrangement signed in Brussels
on 10 May 1910laying down the boundary between German East Africa and
Belgium Congo:
". ..It then takes the thalweg of that river to the point where it flowsout of
Lake Kivu."
Source: InternationalBoundaryStudy, No. 52 (June 1965),page 3.

27. Rwanda-Tanzania

Kagera River (firstand Iast part of the boundary)
Treaty between His Majesty in respect of the United Kingdom and His
Majesty the King of the Belgiansregarding the boundary between Tanganyika
and Rwanda-Urundi of 22 November 1934:
"Article 1: From the confluence of the Mwibu River with the Kagera River
to theintersection of the straight linejoining boundary beacon 59 A to bound-
ary beacon 59 B with the thalweg of the Kagera River, the boundary follows
the thaIweg of the Kagera River ...
..........................
Article4: From the point referred t...the boundary line followsthe thaIweg
of the Kagra River to the Uganda frontier."

Source: InternationalBo~dary Study, No. 69 (May 1966), pages 3 and 5.

28. Rwanda-Uganda
The Rivers Kirumumu, Chizinga and Kachwamba-Kakitumba
Agreement between Great Britain and Germany settling the boundary be-
tween Uganda and German East Africa of 14October 1910and Anglo-German
Protocol signed on 30 October 1911 :

"The thalweg of the Kirumurnu to its source ...
..........................
From the source of the River Chizinga the boundary follows the thalweg ofthe
River Chizinga to its confluence with the River Kachwamba-Kakitumba.
From the confluence of the Rivers Chizinga and Kachwamba-Kakitumba
the boundary follows the thalweg of the River Kachwamba-Kakitumba to the
confluence of the Rivers Kachwamba-Kakitumba and Kagera."
Source: International Boundary Study, No. 54 (July 1965),pages 3 and 5.

Certain frontier rivers
Note Verbale of 30 March 1967from the Swiss Ministry of Foreign Affairs
(Département Politique Fédéral)to the Danish Embassy in Berne:
"... Le tracé sur les cours d'eau formant la frontière entre les cantons
suisses ou entrela Suisseet les Etats limitrophessuit en règlegénéralle milieu
du lit ou parfois, le thalweg." COUNTER-MEMORLAL OF DENMARK 279

30. Tu?izarria-Zumbia

Navigable rivers
Agreement between the British and German Governments respecting Africa
and . .. of I July 1890.
International BoundaryStudy, No. 44 (March I965), page 1, describes the
boundary in the following way:
"In streams cornprising the boundary, the line follows the thalweg where it
can be distinguished..."
STRAIGH LINES

31. Rwanda-Tanzania
Kagera River (middle part of the course of the river)

Treaty between His Majesty in respect of the United Kingdom and Nis
Majesty the King of the Belgians regardingthe boundary betweenTanganyika
and Rwanda-Urundi of 22 November 1934:
Article2: "From the point where the thalweg of the Kagera River isinter-
sected by the straight line joining boundary pillars 59A and 59 B to the point
where the straight line joining boundarpillars 72A and 72 B intersects the
said thalweg, the boundary is determined by the series of straight linesjoining
intervisible Stone pill..."
Source: International BoundaryStudy, No.69 (May 1966),page 3.

ONE OF THESHORES
32. Kenya-Tanzania

Ngobwe River
Agreement between Great Britain and Germany respecting boundaries in
East Africa ,..of 25 JuIy 1893and Anglo-German Protocol of1900:
"The boundary follows the left bank of the Ngobwe to about the point
No. 13.. ."
Source: InternationalBoundary Study,No. 71 (May 19661,page 6.

BOTH SHORES

33. Nefherlands-Prussia
Treaty of Aken between the Netherlands and Prussia of 26 June 1816.
Article 27: "In al1cases where streams or rivform the frontiers they shall
be cornmon to the two States unless the contrary is expressly stipula..."
Unofficial translation, Source: Netherlands Staafsblad 1850,N10. NORTH SEA CONTINENTALSHELF

Amex 14

BILL OF OCTOBE1 R967 RELATINGTO THE BELGIAN CONTINENTS AHLELF

Chambre des Représentants

SESSION 1966-1967

23 OCTOBRE 1967

Projerde loi suleplateau continentade la Bekique

Exposédesmotifs

L'affirmation des droits exclusifs d'exploration et d'exploitation des res-
sources naturelles du plateau continental est relativement récente.Si l'on peut
relever quelques cas isoIéset très localisés d'affirmation de cesdroits avant
1914,c'estla proclamation faite par le PrésidentTruman, le 28septembre 1945,

soumettant le sous-sol et lelit de la mer, appartenant au plateau continental des
Etats-Unis, k leur juridiction àtleur contrôIe, qui a surtout contribué à
l'extension decettenotion nouvelle et k son application par un certain nombre
d'Etats.
A la veille de la réunionde la Conférencedes Nations Unies sur le droit de
la mer, en 1958,plus de vingt Etats avaient unilatéralement étenduleurs droits
sur le plateau continental proprement dit, ou sur une étendueallant parfois
jusqu'a deux cents milles marins. Il s'agissait essentiellement de Puissances
appartenant al'Amériquelatine, au Moyen-Orient etA 1'Extréme-Orient.
Primitivement,lanotion s'appliquait au soclesous-marin proprement dit des
continents; mais un certain nombre de pays, dont les côtes ne comportent pas
de socle sous-marin, l'ont élargie,soit en adoptant des critères de distance, soit
en s'abstenant de tout critkre concret.

Aussi, si la Conférencede Genève sur ledroit de la mer avait comme objectif
la codification du droit international, forceest bien de constater que la notion
même du plateau continental étaittrop récenteet trop imprécisepour que l'on
pût aboutira une codification acceptable.
Telle qu'elle est sortie des travaux de Genève,la Convention du 29avril 1958
sur le plateau continental apparaît au Gouvernement belge comme une cons-
truction juridique encore imparfaite. D'une part, elle ne retient comme cri-
tère que celui de l'exploitabilité;d'autre part, elle dispense I'Etatriverain
d'exploiter réellementet même deprochmer ses droits.
Enfin,elleneprévoit aucunsystèmed'arbitrage obligatoirecasde différends
entre Etats.
Comme la convention étend lesdroits exclusifsde 1'Etatriverain aux organis-
mes vivants en contact permanent avec le lit de la mer (huîtres, moules, algues,

etc.), l'absencede tout critère concret dedéIimitationpourrait causer de graves
préjudicesà nos pêcheurs dehaute mer. Cette raison a amenéle Gouvernement
belge àne pas signer la Convention du 29 avril 1958sur le plateau continental. COUNTER-MEMORIAL OF DENMARK
Cette abstention ne signifiepas que le Gouvernement belge n'accepte pas le

principe mémedes droits de1'Etatriverain. Comme la mer du Nord ne constitue
en réalité qu'unseul plateau continental physique, que les droits que nous
pourrions y détenir se trouvent nécessairementlimitésd'un manière concrète
par ceux des autres Etats riverains, les lacunes de la convention de Genève ne
sauraient y avoir effet.
Aussi, le Gouvernement belge, à l'instar de ce qu'a fait le Gouvernement
norvégienpar sa loi du 21juin 1963,a-t-il pris la décision d'affirmerles droits
de la Belgique sur la part qui lui revient dans le plateau continentalde la mer
du Nord par la voie d'une loi nationale, reprenant les dispositions de la Con-
vention de Genèvedu 29 avril 1958,qu'il considèrecomme les plus appropriées
au plateau continental belge.
Cette loi est volontairement très courte dans ses dispositions, parce qu'il
s'agitd'une loi de principe, fïxant de nouvelles limites à lajuridiction de 1'Etat.

L'article 1du projet de loi consacrel'affirmation des droits de la Belgique; il
définiten outre la notion deplateaucontinental et cellede ressourcesnaturelles.
La définitiondes ressources naturelles est reprise mot pour mot de celle qui
figure Sl'article 2, paragraphe 4, de la convention de Genèvedu 29 avrif 1958.
L'article 2 fixeles critères de délimitationdu plateau continental, conformé-
ment aux dispositions de l'article 6, paragraphes 1 et 2, de la convention pre-
citée.
L'article3 Btablit en principe que les recherches ou l'exploitation des res-
sources minkrales et autres ressourcesnon-vivantes du lit de la mer et du sous-
sol sont subordonnées 1il'octroi de concessions, accordées aux conditions et
selon les modalités déterminées par le Roi.
C'est A dessein que l'article, toen laissant au Roi le soin de déterminer les
modalitésde concessions, ne limite pas la possibilitéd'octroi de celles-ci aux
seuls ressortissants belges. L'intention du Gouvernement est de nefaire aucune
discrimination entre ceux-ci-qu'il s'agissede personnesphysiques ou morales
-et les étrangers,les apatrides, les sociétésou organisationsqui n'ont pas de

nationalité. Mais iI conservera son droit de refuser une autorisation, notam-
ment si des considérations de sécurité,ou la perspective d'un épuisementpré-
maturédes ressources l'y conduisent.
L'article 4 réserveaux ressortissants belgesl'exploration et l'exploitation des
organismes vivants du lit de la mer qui appartiennent aux espècessédentaires
selon Ia définitionde l'articler,alinéa2. Ilest entendu que cetarticle ne tend
pas gênerla pêcheau chalut effectuéepar des pêcheurs étrangers, bienque ce
mode de capture puisse difficilementse pratiquer sans ramener dans le chalut
des algues ou l'un ou l'autre coquillagse trouvant sur le lit de la mer. D'autre
part, des exceptions individuelles et collectives sont prévues; l'on ne peut
préjugernotamment de ce que sera la politique communautaire en matière de
pêcheau sein de la C.E.E., et il est préférablede pouvoir rappliquer, le cas
échéant,avec souplesse.
Au surplus, en rendant applicables les articles 3 et 4 à toute exploration ou
exploitation des ressources naturelles du plateau continental, il n'entre pas
dans les intentions du Gouvernement belge de refuser les autorisations néces-
sairesaux fins de recherchesocéanographiques de caractèrepurement scientifi-

que, pour autant que celIes-cine constituentpointune gêne au sensdel'article 5.
L'article 5confèreau Roi le droit de veilIea ceque l'exploitation et l'explo-
ration ne puissent constituer d'entravesà la navigation,à la pêche, à la con-282 NORTH SEA CONTINENTALSHELF
servation des ressources biologiques de la mer ou à la recherche scientifique.
Ces dispositions sont conformes à celles de l'article 5 la Convention de
Genève du 29 avril 1958.

En vertu de l'articleilincombe au Roi d'établir,en fonction des nécessités
industrielles de L'explorationou de l'exploitatiune zone de sécuritécon-
formémentaux dispositions de la Convention de Genèveprécitée.
Les articles 7,s et 9 du projet de loi soumettent au droit belgelesinstallations
ou autres dispositifs, situésen haute mer, fiaédemeure sur le plateau con-
tinental, ainsi que Lespersonnes et lesbiens qui s'y trouvent. Sans cette disposi-
tion, il se constituerait une sorte de vide judiciaire et juridique sur ces instalIa-
tions, quse trouvent en dehors du territoire national et ne sontpas soumises à
la juridiction du pavillon, comme les navires. Le paragraphe 4 de l'arti5le
de la Convention de Genève du 79 avril 1958, prévoit explicitementque les
installations permanentes établies sur le plateau continental sont soumises
à la juridiction de 1'Etatriverain.
Pour tenir comptede l'avisformulépar leConseil d'Etat, il anécessairede
donner, à défaut d'autres règles attributives, compétenceaux tribunauxde
l'arrondissement judiciaire de Bruxelles en matiere pénale,et de préciserque
les actes ou faits ayant des effetsjuridiques autres que pénauxseront réputés
s'êtreproduits en Belgique, etridéfaut d'autresrèglesattributives de compé-
tence, sur le territoire du deuxièmecanton de justice de paix de l'arrondisse-
ment judiciaire de Bruxelles.

A l'interventiod'unarrêté royaeltsurla proposition du Ministre ayant les
mines dans ses attributions, les dispositions de la loi qui se rapportent aux
ressources minéraIeset aux autres ressources nonvivantes du lit de la mer et
du sous-sol feront l'objet d'un titre spécialdes lois minièrescoordonnéespar
l'arrêtroyal du 15 septembre 1919,avec lesquelles elles seront mise en con-
cordance.

Le Ministre des Afaires étrangères,
P. HARMEL.
Le Ministre de lJustice,
P. WIGNY.
Le Ministre deI'Agricultiire,
CH. HEGER.
Pour le Ministre des Affairec~nomi9uesa,bsent,
Le Ministre dela Défensenationale,
CH. POSWICK.
Le Ministre des Communicafions,
A. BERTRAND.
Le Ministre desFinances,
R. HENRION.

Le Ministre-Secrétaited'Etat auxPostes,
Télégrapheest Tdéphones,
H. MAISSE. COUNTER-MEMORIALOP DENMARK
AVIS DU CONSEILD'ETAT.

Le CONSEIL D'ETAT, section de législation, deuxièmechambre, saisi par
le Ministre des Affaires étrangères,chargéde la Coordination de la Politique
extérieure,le 7 janvier 1966, d'une demande d'avis sur un projet de loi «sur
leplateau continental de la Belgiqueila donnéle 28 février1966l'avissuivant:

Sila souverainetéétatiquerevête,n principe,uncaractèreterritorial, l'exercice
par un Etat de certaines prérogativesde souverainetéen dehors des limites de
son territoire national peut exceptionnellement êtrelégitimésoit par l'effet

d'une convention internationale, soit sur base du droit international coutumier.
La Belgique n'ayant pas adhéréà la Convention de Genèvedu 29 avril 1958
sur le plateau continental, ne peut fonder sa compétence A légiférersur cet
objet que sur la coutume internationale et tel parait bien être, en effet,le fon-
dement que le Gouvernement entend donner au projet.
Si ce procédéne soulèvepas d'objection de principe, sa mise en aeuvre est
cependant de nature à engendrer des difficultéssur le plan pratique dans les
relations entre la Belgique et les autres Etats qui sont, au mêmetitre qu'elle,
directement intéressés par le régimejuridique du plateau continental de la Mer
du Nord. Alors que la Belgique n'est paspartie à la Convention de Genève,le
Royaume-Uni, la France et les Pays-Bas y ont adhéré.
La Convention de Genève estentréeen vigueur A la date du 10juin 1964et,

d'après les renseignements fournis par le délégué du Gouvernement, elle lie
déjàtrente Etats. Il est certain que le juge international qui auraatjuger les
différendssusceptibles d'opposer la Belgique aux Etats étrangers, à propos du
régimejuridique du plateau continental de la Mer du Nord, se référeraitaux
dispositions de cetteConvention dans la mesure où celles-ciseraient considérées
par lui comme l'expression de règlescoutumièresexistantes.
Si le Gouvernement estime qu'il y a lieude préciserle statut juridique du
plateau continental adjacent aux &es belges,plutôt que de proposer au Iégisla-
teur de réglercette matièred'intérêitnternational d'une maniére unilatéraleet
au risque de le faire en méconnaissancedes règlesdu droit des gens, il vaudrait
mieux qu'il soumette àl'assentiment des Chambres l'adhésionde la Belgique a
la Convention de Genève. Pareille adhésion peut d'ailIeurs êtreassortie de
certaines réservesdans les limites admises par l'article 12 de la Convention,
c'est-A-direà l'égardde tous les articles de celle-cA,l'exception toutefois des

articles leà 3.
En toute hypothèse, lesdispositions unilatérales que la Belgique viendrait
à édicteren violation des règles coutumières,seraient inopposables aux Etats
étrangerset a leurs nationaux.

Dans ses dispositions généraIesl,e projet de loi s'inspire des règles énoncées
par la Convention de Genève,dont il reproduit parfois textuellementles termes.
Il n'en est toutefois pas ainsi des dispositions de l'article 4 du projet soumis
dans les termes suivants 5il'avis du Conseil d'Etat:
i(L'exploration et l'exploitation des ressources vivantes du lit de la mer est
réservéeaux ressortissants belges, sauf exceptions collectivesou individuelles
qui peuvent êtreaccordéespar le Roi ii.
En permettant de réserver aux seuls ressortissants belges l'exploration et
I'exploitation detoutesles ressources vivantesdu lit de la mer, le projet s'écarte
de la règle énoncép ear la Convention de Genève selon laquelle1'Etatcôtier ne284 NORTH SEA CONTINENTAL SHELF

peut réserverà ses ressortissants que l'exploration et l'exploitation de certaines
ressources vivantes de types sédentaires.
Interrogé sur ce point, le fonctionnaire délégué a signalé que le Gouverne-
ment n'avait nullementl'intention de s'écarterde la Convention. Ceci renforce
la conclusion de l'observation qui précède. Sitoutefois le Gouvernement
n'entend pas adhérer à la Convention de Genève,le texte de l'article 4 devrait
êtrerédigécomme suit:
n Article 4.- Sauf exceptions collectives ou individueues qui peuvent être
accordéespar le Roi, sont réservéesaux ressortissants belges l'exploration et

l'exploitation des organismes vivants qui, selon Ia définitionde l'article le*,
alinéa2, b, appartiennent aux espècessédentaires. 11

Une autre discordance avecla Convention de Genéveapparaît a l'article 2,2,
du projet.
D'aprés cette disposition, la délimitation du plateau continental vis-A-vis
des paysdont les côtes sont adjacentes aux côtes belgesse fait:u...parapplica-
tion du principe de la lignemédianedont tous les points sont équidistants des
points les plus proches des lignes de base..i>alors que, suivant I'article 62",
de la Convention de Genève,à défautd'accord particulier,cette delimitation a
lieu «...par application du principe de l'équidistancedespoints les plus proches
des lignes de base...il.
Suivantles déclarationsdu fonctionnaire délégubc ,'est ce dernier texte qui

correspond a l'intention du Gouvernement.
II y aurait lieu de modifier en conséquenceL'article2, 2, du projet.

Conformément Ala terminologie utilisée par l'article 2 de laConvention de
Genéve,l'article I*rdu projet dispose que le Royaume de Belgiqueexerce «des
droits souverains )sur le plateau continental«aux finsde l'exploration de celui-
ci et de l'exploitationdeses ressourcesnaturelles»telles qu'ellessont énumérées
a l'article le.b. Cette terminologie implique l'affirmation au profit de 1'Etat
belge de certainsdroits demembrésde la souverainetéet nonl'affirmationd'une
souverainetéterritoriale complètequi serait inconciliable avec leprincipe de la
liberté de la haute mer. En conséquence,L'adoption du projet ne modifiera
pas leslimites de I'Etat telles qu'ellesont pu êtrefixéespar des traitésantérieurs,

ni la composition du territoire national telle qu'elle est décriteài'article le' de
la Constitution. Soumis à certaines compétencesspécifiquesau profit de 1'Etat
belge, leplateau continental ne fera partie ni du territoire national, ni du terri-
toire de la province et des communes riveraines, ni du domaine public belge.
Il formera une zonesoumise, pour la protection d'intérêtsnationaux spécifiques,
à certaines compétencesparticdières de souveraineté.
Les droits de souverainetéque l'articlele* du projet tendà affirmer au profit
de l'Etat belge sur le plateau continental,trouvent ainsileur justification mais
aussi leurs iimitesdans la finalité envue de laquelle ils ont ktéreconnus par le
droit internationaltel qu'ia&te précis5par la Cotivention deGenèvedu29 avril
1958,à savoirl'exploration du plateau continentalainsi que l'exploitation des
seules ressources naturelles qui sont énumérées, dans les mêmestermes, par
l'article 2, alinéa4, de la Convention de Genèveet par l'article ler,b, du projet. COUNTER-MEMORIALOF DENMARK 285
L'article 2 contient dans chacun de ses alinéas,une disposition prévoyant
l'aménagementdela délimitationdu plateau continental belge par des accords
particuliers.
Suivant lesexplications fournies par le fonctionnaire déléguIe,sdispositions
de l'articl2 ne constituent pas un assentiment anticipé aux accords particuliers

que le Roi pourrait conclure au sujet des limites du plateau continental.
Ces accords particuliers, encore qu'ils n'auront pas pour objet de modifier
les frontières de I'Etat, seront de nature à lier individuellement les Belgpar
les effets qu'ils impliqueront sur le plan administratif et juridictionnel et, a
ce titre, ils devront êtresoumisa l'assentiment des Chambres législativescon-
fordment au prescrit de l'article 68 de la Constitution.
*
*

L'article 3précisequetoute personnephysique ou morale de nationalitébelge
ou étrangèrepeut obtenir l'autorisation de rechercher ou d'exploiter les res-
sources minéraleset autres ressources non vivantes du lit de la mer et du sous-
sol. Ainsi se trouvent exclus du bénéfice d'une concession les apatrides et les
sociétéosu organisations qui n'ont pas de nationalite, alors que telle ne paraît
pas êtrel'intention du Gouvernement.
Le meme article dispose que bs demandes de concessions sont introduites
auprès du Ministre qui a l'énergiedans ses attributions, mais l'accord du
Ministre qui a la marine et la navigation intérieuredans ses attributions sera
nécessairepour les modalités d'applicationdu prescrit de l'article 5, $$ lerà3.
11serait plus conforme à l'esprit de la Constitution de laisser au Roi le soin
de déterminer lesconditions et modalités de l'octroi des concessions.
Le texte suivant répond à ces observations:
«La recherche et l'exploitation des ressources minéraleset autres ressources
non vivantes du lit de la mer et du sous-sol sont subordonnées à l'octroi de

concessions accordéesaux conditions et selon les modalités déterminéep sar
le Roi. »
*
*

Au sujet de l'article5, il ya lieu d'observer qu'il ne convient pas d'insérer
dans une loi des dispositions entrant dans les détailsde procédures administra-
tives qui relèvent normalement de l'exécutionde la loi.

La rédactionsuivanteest proposéepour cet article:

iiArticle 5.- Les installations ou autres dispositifs établisen haute mer et
les zones de securité viséesh l'article 6 ne pourront gêner d'une manière
injustifiable ni la navigation, la pêcou la conservation desressourcesbiologi-
ques de la mer, ni l'utilisation desroutes maritimes régulièresd'un intérêetssen-
tiel pour la navigation internationale.

A cet effet,leRoi fixelesmesures àprendre ainsi que leurs modalitésd'execu-
tion.

11déterminede mêmetoute obligation qu'il juge utile à cettefin ,otamment
en ce qui concerne la signaiisation et les moyens d'éviterla pollution des eaux
de la mer ainsi que la détériorationdes câbles sous-marins ou des pipe-lines.
Il arrêtela procédure à suivre pour l'application du retrait partoultotal de
l'autorisation ou de la concession.))286 NORTH SEA CONTINENTAL SHELF

Ce texte, pas plus que celui du projet, ne fait mention de l'interdiction de
gêner les recherchesocéanographiqueset scientifiques quelprévoitl'article5, 1,
de la Convention. L'exposédes motifs ne permet pas de déterminer si cette
omission est intentionnelle.

Conformément à la seconde observation faiteàpropos de l'article 3, il est
suggéré derédigerl'article 6 comme suit:

a Article 6.- Une zone de sécuritépourra êtreétablieselon les modalités
déterminéespar le Roi pour chaque installation ou dispositif situésur le
plateau continental.
Elle peut s'étendreà une distance de cinq cents mètres mesurésà partir de
chaque point du bord extérieurde ces installations ou dispositiJI.

Suivant les renseignements fournis par les déléguédsu Gouvernement, les
installations dont il est questionl'article 7 sont uniquement celles qui sont
reIativesà l'exploration du plateau continental et a l'exploitation de ses res-
sources natureIIes. II convient de mettre le texte en concordance avec cette
intention, en substituant l'expression aInstallations permanentes situéesen
haute mer sur le plateau continental belge)) l'expression plus adéquate:
installationsou autres dispositifs situésen haute mer, fixésà demeure sur
ie plateau continental et viséspar la présente ».i
Cet article appelle, en outre, l'observation suivante: l'expression ((sont
soumises a la juridiction civile, pénaleou administrative belge)) manque de

clartéet devrait êtreprécisée.
11convient, en effet, de savoir si la disposition contenue dans l'article 7 tend
simplement à affirmerla compétence virtuellede législation,de réglementation
et de juridictioi~l'égarddes activitéset des personnes quiy sont viséesou si
cette disposition entend soumettre, de plein droces personnes et ces activités
aux lois et règlementsde 1'Etatbelge ainsi qu'a sesjuridictions.
Pour illustrer les difficultksqui peuvent naître en cette matière, il suffitde se
demander si tous les actes ou faits juridiques qui se produiront sur ces
installations fixes(naissances,contrats, infractions)serontréps'êtreproduits
en Belgique; si les dites installations seront susceptibles d'hypothèques, si les
revenus professionnels qui y seront réalisésseront réputés avoir éperçus en
Belgique, si les delinquants étrangers qui y seront trouvés pourront etre
expulsésou extradés, etc...

En toute hypothèse, ily a lieu d'observer qunefaisantpartie d'aucune pro-
vince, arrondissement où commune belge, le plateau continental et les activités
qui s'y exerceront, ne peuvent êtresoumis ni aux règlementsprovinciaux ou
communaux, ni à des lois nationales dont l'application est fonction d'une cer-
tainerelation entre une activité etune région déterminéeu territoire national.
Enfin, dans la mesure où 17articIe7 du projet a pour objet desoumettàedes
juridictions belges les activitésou les infractions localiséessur le plateau con-
tinental ou sur des installations fixesqui y seraient établies,la portéeexacte de
cet article devrait êtreprécisde manière àévitertoute discussion de compé-
tence territoriale entre diversesjuridictions belges.
On observera,iicet égard,que plusieurs lois belges qui ont étendu à des
infractio consmises en haute mer Ia compétencedes juridictions belges, ont
expressément prévu que seront légalementcompétents: letribunal du lieu de la COUNTER-MEMORIAL OF DENMARK 287

résidence de l'inculpé ou de sa dernièrrésidence,celui du lieu oùil aura été
trouvéet celui dans le ressort duquel se trouve le port d'attache du navire ou
encore, àleur défaut,le tribunal correctionnel de Bruxelles(loi du 25 août 1920
sur la sécurité des navires, articles-5 Loi du 5 juin 1928 portant revision
du Code disciplinaire et pénalpour la marine marchande et la peche maritime,
article 7- Voyezaussi la loi du12 avril 1957 autorisant le Ràiprescrire des

mesures en vue de protéger lesréservesde poissons, crustacéset de mollusques
en mer, article 4, et arrroyal d'exécutiondu 7 mai 1958,article 9).
Sauf dans la mesure où elles attribuent compétencea la juridiction dans le
ressort de laquelle se trouve le port d'attache du navire, ces dispositions légales
pourraient utilement inspirer Ie législateurdans le choix d'une solution au
problkme qui est évoqué ici.
La chambre était composéede:
Messieurs: G. Holoye, conseiller d'Etat, président;

G. Van Bunnen et J. Masquelin, conseillers d'Etat;
P. De Visscher et J. De Meyer, assesseursde la section de législa-
tion;
G. De Leuze, greffieradjoint, greffier.

La concordance entre la version française et la version néerlandaise a été
vérifiéesous le contrôle dM. G. Van Bunnen.
Le rapport a été présentéar M. W. Lahaye, auditeur généraa ldjoint.
Le Greffier, Le Président,

(S.)G. DELEUZE. (S.)G. WOLOYE.

PROJE TE LOI

Roi des Belges,

A toitsprésentset à venir SALUT.

Sur la proposition de Notre Ministre des Maires étrangères, deNotre
Ministre de la Justice, de Notre Ministre de l'Agriculture, de Notre Ministre
des Affaires économiques, deNotre Ministre des Communications, de Notre
Ministre des Finances et de Notre Ministre-Secrétaire dlEtat aux Postes,
Télégrapheset Téléphones.

Nous AVONS ARRÊTÉ ET ARRÊTONS:

Notre Ministre des Affaires étrangères,Notre Ministre de la Justice, Notre
Ministre de l'Agriculture, Notre Ministre des Affaires économiques, Notre
Ministre des Communications, Notre Ministre des Finances et Notre Ministre-
Secrétaired'Etat aux Postes, Télégrapheset Téléphonessont chargésde présen-
ter, en Notre nom, aux Chambres législatives,le projet de loi dont la teneur
suit:

Article premier.
Le Royaume de Belgique exerce des droits souverains sur le plateau con-
tinental tel qu'il est déliill'article 2 de la présente loi auxfinsde l'explora-

tion de celui-ci et de l'exploitation de ses ressources naturelles.288 NORTH SEA CONTINENTAL SHELF

Au sens de la présenteloi:
a) l'expression ((plateau continentalii désignele lit de la mer etlesous-sol

des régions sous-marines adjacentes aux côtes mais situéesen dehors de la mer
territoriale ;
b) les «ressources naturellesicomprennent lesressources minéraleset autres
ressources non vivantes du lit de la mer edu sous-sol, ainsi que les organismes
vivants qui appartiennent aux espèces sédentaires, c'est-&-dire Ies organismes
qui, au stade où iIspeuvent &trepêchéss,ont soit immobiles sur Ie lit de Ia mer
ou au-dessous de celit, soit incapables de se déplacersce n'estenrestant cons-
tamment en contact physique avec le lit de la mer ou le sous-sol.

Art. 2.
La délimitationdu plateau continental belge vis-&-visdu plateau continental
du Royaume-Uni de Grande-Bretagne et d'Irlande du Nord est constituéepar
la ligne médiane dont tous les points sont équidistants des points les plus
proches des lignes de base B partir desquelles est mesurke la largeur de la mer
territoriale dela Belgique et du Royaume-Uni. Cette déIimitationpeut être
aménagéepar un accord particulier.

La délimitationdu pIateau continental vis-h-visdes pays dont les côtes sont
adjacentesauxcôtes belges,c'est-à-direla France et lesPays-Bas,est déterminée
par application du principe de l'équidistancedes points les plus proches des
lignes de baseà partir desquellesest mesurée lalargeur de la mer territoriale de
chacune des puissances intéressées.Cette délimitation peut êtreaménagéepar
un accord particulier avec la puissance intéressée.

Art. 3.
La recherche et l'exploitation des ressources minéraleset autres ressources
non vivantes du lit de la mer et du sous-sol sont subordonnées Al'octroi de
concessionsaccordées aux conditions et selon les modalités déterminées par le
Roi.

Art. 4.
Sauf exceptions collectives ou individuelles qui peuvent êtreaccordéespar
le Roi, sont réserveesaux ressortissants belgesl'exploration et l'exploitation des

organismes vivants qui, selon la définition de l'articlleralinéaZb, appartien-
nent aux espèces sédentaires.
Art. 5.

Les installations et autres dispositifs établis en haute mer, nécessaires a
l'exploration ou 2 I'expIoitation des ressources naturelles du plateau con-
tinental, ainsi que les zones de sécuritéviséesa l'article 6 ne pourront gêner
d'une manière injustifiable ni la navigation, la pêcheou la conservation des
ressources biologiques de la mer, ni l'utilisation des routes maritimes régu-
lières d'un intérêt essentieplour la navigation internationale, ni les recherches
océanographiquesfondamentales oulesautres recherchesscientifiqueseffectu6es
avec l'intention d'en publier les résultats.
A cet effetle Roi fixelesmesures a prendre ainsi que leurs modalitésd'exécu-
tion.
Il déterminede mêmetoute obligation qu'il juge utile iicette fin, notam-
ment en ce qui concerne la signalisation et les moyens d'éviterla pollution des

eaux de la mer ainsi que la détériorationdes câbles sous-marins ou de pipe-
lines. COUNTER-MEMORIALOF DENMARK 289

11arrêtela procédure à suivre pour l'application du retrait partiel ou total
de l'autorisation ou de la concession.

Art. 6.
Une zone de sécuritépourra êtreetablie selon les modalitésdéterminéespar

le Roi pour chaque installatioou dispositif situésur le plateau continental.
Elle peut s'étendrZtune distance de cinq cents mètres mesuràspartir de
chaque point du bord extérieurde ces installations ou dispositifs.
Art. 7.

Les installations ou autres dispositifs situésen haute fixésh demeure
sur le plateau continental et viséspar la présente loi,ainsi que les personnes et
les biens qui se trouvent sur ces installations ou dispositifs sont soumis au
droit belge.

Art. 8.
Toute personne qui aura commis une infraction répriméepar le droit belge
sur une installation ou un autre dispositifàl'article précédentourra être
poursuivie en Belgique.
A dkfaut d'autres régiesattributives de compétence, lesjuridictions qui

siègentà Bruxellessont compétentes.
Art.9.

Les actes ou faits ayant des effetsjuridiques autres que pénauxqui se pro-
duiront sur ou A l'égardd'une installation ou d'un autre dispositif visé5i
l'article 7 seront réputéss'êtreproduits en Belgique.
A défaut d'autresrèglesattributives de compétence, cesactes ou faits seront
réputess'êtreproduits sur le territoire du deuxièmecanton de justice de paix
de l'arrondissement judiciaire de B~xeiies.

Donne ZIBruxelles, le 11 octobre 1967.

BAUDOUIN.

PAR LE ROI:
Le Ministre des Affairesétrangères,
P. HARMEL.
Le Ministre dela Justice,
P. WIGNY.
Le Ministre de I'Agriculture,
CH.HEGER.

Pour le Ministre des Affaireséconomiques,absenb,
Le Ministre de la Défensenationale,
CH.POSWICK.
Le Ministre des Communications,
A. BERTRAND.

Le Ministre desFinances,
R. HENRION.
Le Ministre-Secrétaired'Etat aux Postes,
Télégrapheset Téléphones,
H. MAISSE. NORTH SEA CONTINENTAL SHELF

Annex 14'A
(Translation)

Chamber of Representatives

1966-1967Session

23 October 1967

Bill
concerning the Continental Shelf of Belgium

Ladies and Gentlemen,
Claims to exclusive rights to explore and exploit the natural resources of the
continental shelfare relativelyrecent. Though it is possible to citfewisolated
and very localized cases wheresuch rights wereclaimed before 1914,it is Presi-
dent Truman's proclamation of 28 September 1945 placing the subsoil and
seabed of the United States' continental shelf under that country'sjurisdiction
and control, that has contnbuted most notabiy to the diffusion of this new
concept and to its application by a certain number of States.

In 1958, on the eve of the meeting of the United Nations Conference on the
Law of the Sea, more than 20 States had unilaterally extended their rights over
the continental shelf proper or over a stretch of sea measuring sometimes as
much as 200 nautical miles. The States in question were for the most part
Latin-American, Middle-Eastern and Far-Eastern Powers.
Originally the concept was applied to the submarine shelf proper of the con-
tinents, butacertain number of countries whosecoasts have no submarine shelf
have extended it, either by adopting criteria of distance or by dispensing with
any concrete criterion.
Thus, although the purpose of the Geneva Conference on the Law of the
Sea was the codification of internationallaw,it had needs to be concluded that
the actual concept of the continental shelf was too recent and too imprecise
for an acceptable codification to be drawnup.
In the form it has been givenby the deliberations at Geneva, the Convention
of 29 ApriI 1958on the Continental Shelf is regarded by the Belgian Govern-
ment as a still imperfect juridicai construction. On the one hand, it adopts
exploitability as the soIe criterion; on the other hand, it absolves the coastal
State from the obligation of actually engaging in exploitation or of even de-
claring its rights.

Furthermore, it does not provide for any system of compuIsory arbitration
in case of disputes between States.
Since the Conventio exntends the exclusive rights of the coastal Stato the
living organisms in permanent contact with the seabed (oysters, mussels, sea-
weed,etc.), the absence of any concrete criterion of delimitation could seriously
prejudice our sea fisherrnen. This has led the Belgian Government to refrain
from signing the Convention of 29 April 1958 on the Continental Shelf. COUNTER-MEMORIAL OF DENMARK 291
This abstention does not mean that the Belgian Government does not accept
the actual principle of the rights of the coastal State. Since the North Sea in

fact only constitutes a single natural continental shelf, and since the rights
which we could have thereover are necessarily limited in a concrete manner by
the rights of the other coastal States, the lacunae in the Geneva Convention
would not have any repercussions there.
Therefore the Belgian Government, folIowing the exarnple set by the Nor-
wegian Government with its Act of 21 June 1963, has decided to assert the
rights of Belgium over its due share of the continental shelf of the North Sea
by rneans of an Act of ParIiament in which are reproduced those provisions of
the Geneva Convention of 29 April 1958which the Belgian Government deems
the most appropriate to the Belgian continental shelf.
The provisions of the Act are intentionally very brief sinceisan Act stating
principles; it establishes new limits to the State'sjurisdiction.

Article 1 of the Bill asserts the rights of Belgium; it defines, moreover, the
concept of continental shelf and that of natural resources. The definition of
natural resources is taken over word for word from Article 2, paragraph 4,
of the Geneva Convention of 29 April 1958.
Article 2 establishes the criteria of delimitation of the conthenta1 shelf in
conformity with the provisions of Article 6, paragraphs 1 and 2, of the said
Convention.
Article 3 lays down in principle that the exploration or the exploitation of
mineral and other non-living resources of the seabed and subsoil shall be sub-
ject to the granting of concessions, accorded on the conditions and in the man-
ner determined by the King.
This Article, while leaving to the King the task of determining the manner
in which the concessions shall begranted, deliberately refrains from providing
that they may be granted to BeIgian nationals only. It is the Governrnent's

intention to practise no discrimination between Belgian nationals-whether
natural or juridical persons-and foreigners, stateless persons, cornpanies or
organizations that have no nationality. But it will reserve the right to refuse a
licence, notably if it is prompted to do soby security considerations or by the
prospect of the resources being prematurely exhausted.
Article 4 reserves for Belgian nationals the exploration and exploitations of
living organisms of the seabed that belong to sedentary species as defined in
Article 1,paragraph 2. The purpose of this Article isnot, of course, to hinder
trawl-fishingengaged in by foreign fishermen,althoughthis form of fishingcan
hardly be practised without seaweed or some shell or other being picked up
frorn the seabed by the trawl. However, provision has been made for individual
and collective exceptions, for it is not possible to know in advance what will
be the cornon policy of the EEC as regards fisheries,and whenthe time comes
it should be possible to apply that policy in a flexiblemanner.
Furthermore, in making Articles 3 and 4 applicable to al1exploration or

exploitation of the natural resources of the continental sheIf,the Belgian Gov-
ernment has no intention either of refusing licencesfor oceanographic research
of a purely scientificcharacter, in so far as such research activitiesdo not cause
interference within the meaning of Article 5.
Article 5 accords to the King the right to ensure that exploitation and ex-
ploration do not hinder navigation, fishing, the conservation of the biological292 NORTH SEA CONTINENTAL SHELF

resources of the sea or scientific research. These provisions are in conformity
with those of Article 5 of the Geneva Convention of 29 ApriI 1958.
In virtue of Article 6itis for the King to establish, in the light of industrial
needs for exploration or exploitation, a safety zone in conformity with the pro-
visions of the above-mentioned Geneva Convention.

Articles 7,8and9of the Billplace under Beigian Iawthe installations or other
devicessituated in the high seas and establishedpermanently on thecontinental
shelf, as also any persons or goods located there. Without this provision a kind
of judicial and juridical vacuum would be created on these installations, which
are situated outside the national territory and are not subject, as ships are, to
the law of the flag. Paragraph 4 of Article 5 of the Geneva Convention of 29
April 1958provides explicitly that permanent instaIlations established on the
continental shelf shall be subject to the jurisdiction of the coastal State.
In order that advice of the Council of State may be taken into consideration,
it has been necessary, in the absence of other rules assigning cornpetence, to
assign competencein penal rnatters to the courts of thejudicial district of Bms-
sels, and to specify that actions or occurrences having other than criminal im-
plications shall be deerned to have taken place in Belgium and, in the absence
of other rules assigning competence, on the territory of the second cantonal
court of the judicial district of Brussels.

By Royal Decree and on the proposa1 of the Minister responsible for the
mines, the provisions of the Act relating to the minera1and other non-living

resources of the seabed and subsoil shall bemade thesubject of a specialsection
of the Mines Acts CO-ordinatedby Royal Decree of 15 September 1919,with
which they willbe brought into harmony.
(Ministers' signatures.)

Advice of the Council of State

The Council of State, Legislation Department, Second Chamber, having on
7 January 1966been requested by the Minister for Foreign Affairs, responsible
for the CO-ordinationof foreign policy, to advise him on a Bill "concerning
the Continental Shelf of Belgium", submitted the following advice on 28 Feb-
ruary 1966:
Although, in principle, State sovereignty bears a territorial character, the
exercise by a State of certain prerogatives of sovereignty outside the lirnits of
its national territory may, exceptionally, bejustified either in virtue of an inter-
national convention oron the ground of custornary international law.

As Belgiurnhasnot acceded to the GenevaConvention of 29April1958 on the
Continental Shelf, she can only base her competence to Iegislate thereon on
international ciistom, and that would indeed appear to be the foundation on
which the Government intends to base the Bill.
Although this procedure does not give .rise to any fundamental objection,
its implementation is such as may lead to practical difliculties in relationbe-
tween Belgiumand the other States that haGe,for the same reasons as Belgiurn,
a direct interest in the system of law governing the continental shelf of the
North Sea. Belgiurnhas not acceded to the Geneva Convention, but the United
Kingdom, France and the Netherlands have done so.
The Geneva Convention came into force on 10 June 1964and, according to
the information furnished by the officer representing the Government, it is COUNTER-MEMORIALOF DENMARK 293
already binding on 30States. It iscertain that theinternational judge whowould
have to arbitrate in disputes that might arise between Belgium and foreign
States on the subject of the system of law governing the continental shelf of
the North Sea would have reference to the provisions of this Convention in
so far as he deemed them to be the expression of existing rules of customary

law.
If the Government considers it preferable to have the legal status of the
continental shelf adjacent to the Belgian Coastpreciseiy defined rather than to
propose to the legislature that it regulate this matter of international interest
unilaterally and at the risk of infringing rules of international law,the Govern-
ment would be weliadvised to submit the accession of Belgiurnto the Geneva
Convention for the assent of the Chambers. Such accessioncould be made sub-
ject to certain reservations within the limits permitted by Article 12of the Con-
vention, namelyin respect of al1Articles of the Convention with the exception,
however, of Articles 1 to 3 inclusive.
At al1events, such unilateral regulations as Belgium might decree in viola-
tion of the rules of customary law could not be invoked against foroign States
or their nationals.

In its general provisions the Bill is based on the rules of the Geneva Conven-
tion, the text of which it sometimesreproduces word for word. Suchis notthe
case, hawever, with the provisions of Article 4 of the Bill, submitted in the
following terms for the consideration of the Council of State:
"The exploration and exploitation of the living resources of the seabed
shall be reserved for Belgian nationals, Savefor collective or individual
exceptions that rnay be authorized by the King."
By providing that onIy Belgian nationals may explore and exploit ailliving

resources of the seabed, the Bill departs frorn the rule of the Geneva Conven- *
tion according to which a coastal State may only reserve for its nationals the
exploration and exploitation of cerfainliving resources of sedentary species.
When questioned on this point, the Officer representing the Government
stated that it was by no means the Government's intention to deviate from the
Convention. This reinforces the conclusion of the preceding observation. If,
however, the Governrnent does not wish to accede to the Geneva Convention,
the text of Article 4 shouId be worded as follows:
"Article &Save for collective or individual exceptions that may be
authorized by the King, the exploration and exploitation of living orga-
nisms that, according to the definition of Article 1, para. 2, b, belong
to sedentary species shall be reserved for Belgian nationals."

A further deviation from the Geneva Convention appears in Article 2, 2, of

the Bill.
According to this provision, the delimitation of the continental shelfvis-à-vis
the countries whose coasts are adjacent to the Belgian coasts shall be made:
"by application of the principle of the median line every point of which is
equidistant frorn the nearest points of the baselines. ..", whereas, according
'to Article 6,paragraph 2, of the Geneva Convention,in the absence of a special294 NORTH SEA CONTINENTAL SHELF
agreement, this delimitation shall be made "by application of the principle
of equidistance from the nearest points of the baselines.. ."

According to the statements of the officerrepresenting the Government, it is
the latter text which corresponds to the Government's intention.
Article 2, 2,of the Bill should in consequence be amended.

In confonnity with the terrninology used in Article 2 of the Geneva Con-
vention, Article 1of the Billlays down that the Kingdom of Belgium shall exer-

cise "sovereign rights" overthe continental shelf "for the purpose of exploring
the latter and exploitingits natural resources" as theyareenurnerated in Article
1, b. This wording affirms that the Belgian State has certain rights unrelated
to sovereignty, and not that it has complete territorial sovereignty which
would be irreconcilabte with the freedom of the hi& seas. Consequently, the
adoption of the Bill will not modify the boundaries of the State such as they
may have been fixed by previous treaties, or the composition of the national
territory such as it is described in Article 1 of the Constitution. Made sub-
ject to certain specificcompetencesin the BelgianState's favour,the continental
shelf willnot form part of the national territory or ofthe territory of the coasbl
province or municipalities or of Belgian public property. It wiii constitute a
zone that is subject, for the protection of specific national interests, to certain
special sovereign competences.

The sovereign rights which ArticIe 1 of the Bill asserts for the Belgian State
over the continental shelf thus find their justification, but also their lirnits,
in the iinality for which they have been recognized by international law such
as it was defined by the Geneva Convention of 29 April 1958,namely the ex-
ploration of the continental shelf and the exploitation of only those natural
resources enumerated, in the sarne terms, in Article 2, paragraph 4, of the
Geneva Convention and in Article 1, 6, of the Bill.

Each paragraph of Article 2 contains a provision stating that the delimita-
tion of the Belgian continental shelf rnay be adjusted by special agreements.
According to the explanations given by the oficer representing the Govem-
ment, the provisions of Article 2 do not constitute assent in advance to the
special agreements which the King may conclude regarding the lirnits of the
continental shelf.
Even though the purpose of these special agreements may not be to modify
the frontiers of the State, they may be such as to bind the Belgians individually
by reason of their administrative and jurisdictional consequences, and for this

reason they willhave to be submitted for the assent of the LegislativeChambers
in conformity with ArticIe 68 of the Constitution.

Article 3 provides that any natural or juridical person of Belgian or foreign
nationality may obtain a licence to explore or exploit the mineral and other
non-living resourcesof the seabed andsubsoil. Statelesspersons and companies
or organizations not having a nationality could therefore not be granted a ,
concession, a situation that does not appear to have been intended by the
Govemment.
The same Article provides that appIications for concessions shall be sub- COUNTER-MEMORIAL OF DENMARK 295

mitted to the Minister responsiblefor Power, but the agreement of the Minister
responsible for marine affairs and inland water transport will be necessary
for the application of the provisions of Article 5,sections 1to 3.
It would be more in keeping with the spirit of the Constitution to entrust

to the King the task of deterrnining the conditions and niles relative to the
granting of the concessions.
The following text takes these observations into account:
"The exploration and exploitation of mineral and other non-living re-
sources of the seabed and subsoil shall only be permitted on the strength
of concessions accorded on the conditions and in accordance with rules
determined by the King."

Where Article 5is concerned, it should be noted that it is not appropriate to
include in an Act provisions pertaining to details concerning administrative
procedures which in fact relate to the implementation of the Act.
The following wording is proposed for this Article:

"Article 5-The installations or other devices established in the high
seas and the safety zones referred to in Article 6 shalI not interfere in an
unjustifiable manner with navigation, fishing or the conservation of the
living resources of the sea, or with recognized sea lanes of essential im-
portance to international navigation.
To thisend the King shail determine the measures to be taken as also the
rules governing their implementation.
He shallestablishany obligations that heconsidersusefulto this end, no-
tably in respect of warning systems and means of preventing the pollution
of the water of the sea and damage to submarine cables or pipelines.
He shall lay down the procedure to be followed for the partial or total
withdrawal of a licence or concession."

This text, like that of theill,makes no mention of the provision contained
in Article 5, 1, of the Convention prohibiting interference with oceanographic
and scientificresearch. It inotpossible to ascertain from the ExposédesMotifs
whether this omission is intentional.

In conformity with the second observation made in connection with Article
3, it is proposed that Articlebe worded as follows:
"Article 6-A safety zone may be established in accordance with the
rules laid down by the King for every installationor devicesituated on the
continental shelf.
The zone may extend to a distance of 500 metres measured from each
point of the outer edge of these installations or devices."

According to the information given by the officersrepresenting the Govern-
ment, the installations referred to in Articl7 are solely those pertaining to the
exploration of the continental shelf and to the exploitation of its natural
resources. The text ought to be brought into line with this intention, Le., the
phrase "permanent installations situated in the high seas on the Belgian con-

tinental shelf" should be replaced by the more adequate phrase "installations296 NORTH SEA CONTINENTAL SHELF

or other devices situated in the high seas permanently established on the con-
tinental shelf and referred to by the present Act".
This Article prompts the following observation: the phrase "are subject to
Belgian civil, penal or administrative jurisdiction" should be expressed in a
more precise manner.
For what needs to be known is whether the provision contained in Article 7
simply asserts virtual cornpetence as regards legislation, the making of rules
and jurisdiction in respect of activities and persons referred to therein, or

whether the provision wishes to subject, ipsojure, those persons and those
activitiestu the laws, regdations and law courts of the Belgian State.
To illustratethe difficultiesthat rnay arise in this matter, it issufficientmerely
to consider the question whether al1juridical actions or occurrences that rnay
take place on these permanent installations (births, contracts, offences)shall be
deerned to have taken place in Belgium, and whether the said installations rnay
beencumbered with a mortgage, whetherearnings acquired there willbedeemed
to have been received in Belgium, whether foreign delinquents who rnay be
found there can be expelled or extradited, etc....
At al1events, it ought to be observed that since it doenot form part of any
Belgianprovince, district or rnunicipality, thecontinental shelfand the activities
that rnay take place there cannot be subjected to provincial or municipal
regulations or to national laws the application of which supposes a certain
relation between an activity and a specificregion of national territory.
Finally, in so far as the purpose of Article 7 of the Bi11is to subject to the
jurisdiction of Belgian courts such activities as take place or offences as are
comrnitted on the continental shelf or on permanent installations which rnay
be establishedthere, the scope of this Article oughtto be definedso precisely as

to preclude any dispute between Belgianlawcourts asto territorial cornpetence.
It should be observed that several Belgian Actsthat have extendedthe com-
petence of Belgian law courts to offences cornrnitted on the high seas have
expressly provided that the following shaIl be cornpetent at law: the court of
the place of residence of the accused or of his lnst residence, the court of the
place in which he is found and the court within whose jurisdiction the home
port of the ship is situated, or, failing these, the District court at Bmssels
(Act of 25 August 1920on the Safety of Ships, Article 35-Act of5 June 1928
revising the Disciplinary and Penal Code for the Merchant Navy and Sea
Fishery, Article 74-see also the Act of 12April 1957authorizingthe King to
determine measures for the protection of stocks of fish, crustacea and moliuscs
in the sea, Article 4, and the Royal Decree of 7 May 1958conceming the im-
plementation thereof, Article 9).
Savein sofar as they attribute cornpetenceto thecourt within whosejurisdic-
tion the home port of the ship is situated, these statutory provisions rnight
prove useful to the Legislature in its choice ofa solution to the problern that
has here been brought forward.

The Chamber was composed of:
Messrs. etc., etc. COUNTER-MEMORIAL OF DENMARK

BILL

BAUDOUm
King of the Belgians

To ail those present and to come, GREETINGS.
At the proposa1 of our Minister for Foreign Affairs, of Our Minister of
Justice, of our Minister of Agriculture, of our Minister for Economic Affairs,
of our Minister of Communications, of our Minister of Finance and of our
Minister-State Secretary for Postal Affairs,
WE HAVE DECIDED AND DO HERE DECIDE:

Our Minister for Foreign Affairs, Our Minister of Justice, our Minister of
Agriculture, our Minister for Economic Affairs, our Minister of Cornmunica-
tions, our Minister of Finance and our Minister-State Secretary for Postal
Affairs are instructed to present, Our name, to the Legislative Chambers,
the Bill the text of which is as follows:

Article1
The Kingdom of Belgiumshall exercisesovereignrights over the continental
shelf.such asithas been delimitedin Article 2 ofthe present Act. for the purpose
of eGloring the said shelf and of exploiting its natural resources..

Within the meaning of the present Act:
(a) the expression "continental shelf" shall designate the seabed and the
subsoil of submarine regions adjacent to the Coastbut situated outside the
territorial sea;
(6) the "natural resources" shall consist of the minera1and other non-living
resources of the seabed and subsoil together with living organisms be-
longing to sedentary species, that is to Say,organisms which, at the har-
vestable stage, either are immobile on or under the seabed or are unabIe
to moveexcept in constant physical contact with the seabed or the subsoil.

Article2

The delimitation of the Belgian continental shelf vis-8-vis the continental
shelf of the United Kingdom of Great Britain and Northern Ireland is con-
stituted by the median line every point of which is equidistant from the nearest
points of the baselines from which the breadth of the territorial sea of Belgium
and that of the United Kingdom ismeasured. This delimitation maybe adjusted
by a special agreement.
The delimitation of the continental shelf vis-&-viscountries whose coasts
are adjacent to the Belgian coasts, that is to say France and the Netherlands,
shall be determined by application of the principle of equidistance from the
nearest points of the baselinfrom which the breadth of the territorial sea of

each of the Powers concerned is rneasured. This delimitation may be adjusted
by a special agreement with the Power concerned.
Article 3

The exploration and exploitation of minera1and other non-living resources
of the seabed and subsoil shall be subject to the granting of concessions ac-
corded on the conditions and in accordance with rules determined by the
King.298 NORTH SEA CONTINENTAL SHELF

Article 4

Save for collective or individual exceptions that may be authorized by the
King, theexploration and exploitation of livingorganismsthat, according to the
definition of Article 1, paragraph 2, 6,belong to sedentary species shall be
reserved for Belgian nationals.
Article 5

The installations and other devicesestablished in the high seas and necessary
for the exploration or exploitation of the natural resources of the continental
shelf as also the safety zones referred to in Article 6, shall not interfere in an
unjustifiable manner with navigation, fishingor the conservation of the living
resources of the sea, or with recognized sea lanes of essential importance to
international navigation, or with fundamental oceanographic or other scientific
research carried out with the intention of open publication.

To this end the King shall determine the rneasures to be taken as also the
rules governing their irnplementation.
He shall establish any obligations that he deems useful to this end, notably
in respect of warning systems and means of preventing the pollution of the
water of the sea and damage to submarine cables or pipelines.
He shall lay down the procedure to be foflowed for the partial or total
withdrawa1of a licence or concession.

A safety zone may be established in accordance with rules laid down by the
King for every installation or device situated on the continental shelf.
The zone may extend a distance of 500metres measured from each point of
the outer edge of these installations or devices.

Article 7

The installations or other devices situated in the high seas perrnanently
established on the continental shelfas also any persons or goods Iocated on the
installations or devices, shall be subject to Belgian law.
Article 8

Any person who, on an instalIation or other device referred to in the pre-
ceding Article, commits an ofence that is regarded as such in Belgian law may
be prosecuted in Belgium.
In the absence of other niles assigning competence, the courts that sit in
Brussels shall be competent.

Article 9
Actions or occurrences having legal consequences not governed by penal

law that take place on or in respect of an installation or other device referred
to in Article 7 shalbe deemed to have taken place in Belgium.
In the absence of other rules assigning competence, these actions or oc-
currences shall be deemed to have taken place on the territory of the second
cantonal court of the judicial district of Brussels.

Given at Brussels, 11October 1967

BAUDOULN
By the King;
(Listof Ministers) COUNTER-MEMORIAL OFDENMARK

Annex15

BRIEFREMARK OSNTHE USE OF LITERATUR IE THE MEMORIA OF THEFEDERAL

REPUBLIC OF GERMANY ILLUSTRATE BY FURTHERQUOTATION FROM THE
AUTHORC SITED
1. Paragraph 32 in the Memorial contains the followingquotationfrom page

439in the Report on rhe46th Conferenceof the InternationalLaw Associaiion,
1954:
"The new ILC formula would appear to be superior to the old becausof
the more precise and objective nature of the nile proposed. So long as it is
understood that geometric principles are not applied ad absurdum,they can
be useful rneanof ascertaining what should be prima facie an equitable divi-
sion."

It should be noted, however, that the quotation continues as follows:
"Equidistance would seem to be in generala desirable formula to follow,
although in some situations the facts of geography and politics may rnodify its
application."

2. Paragraph 34 in the Mernorial contains the following statement:
"The doctrinehas up to now concerned itself only verylittle with the problem
of boundary delirnitation. Most of the authors who have devoted attention to
this question were, however, of the opinion that the delimitation of the shares
of States in a common continental shelf could not be efected by the rigid ap-

plication of some geornetric rnethod, but that such methods could only be
regarded as a startingpoint or as a means to achieve a just andequitable ap-
portionment."
(4) In support of this staternent, the paragraph quotes, among other au-
thors, the following passagefrom Olivier deFerron, Le Droit de laMer, Volume
II, 1960, page 201 (referring to the "median line"):

"Plusieurs pays ont critiquéa Conférencede Genève cettedisposition qui,
d'après eux,manquerait de souplesse et ne saurait réponàrtous les cas qui
peuvent se présenter.Appliquée d'unemanière rigide, ellepeut conduire Ades
injustices et donner lieu a des difficultésd'application;"
It should be noted, however, that the German Memorial, paragraph 70,
contains the following quotation from page 202 in the same work of Olivier

de Ferron :
"L'article 6 de la Conventide Genèvestipule en effet qu'elle(Le.,the
median line and the lateral equidistance line) peuvent êtremodifiées d'un
commun accord entre les Etats intéressés,dans le cas où 'des circonstances
spécialesjustifient uneautre délimitation',par exemple lorsquela configuration
exceptionnelle de la côte ou la présenced'îles ou de chenaux navigables l'exi-
gent. Les règles adoptées parla Conférencede Genève sontdonc assez souples

pour permettre unesolution équitable dansis les cas." (Italics added.)
(b) Furthermore, in support of the German statement in paragraph 34 the
following passage is quoted from Aaron L. Shalowitz, Shore and Sea Borin-
daries,Volume II, 1964, page 384 (referring to "lateral boundaries"):

"In delimitingsuch boundaries, the objective is to apportion the sea area in
such a manner as will be equitable to bath States;" COUNTER-MEMORIAL OF DENMARK 301

further burden of providing specific evidence of their particular interests in
the region."
It will be seen that the authors explicitly acknowledge that the question is
one of drawing boundaries and not one of sharing out a common continental
shelf.

3.In paragraph 41 in the Memorial it is maintained that:
"A very special situation arises when-as in the case of the North Sea-a
continentalshelfwhich is surroundedby severallittoral Stafes has to be divided
among these States. Here a problem sui generis arises which cannot be solved
satisfactorily by the application of methods developed for drawing maritime
boundaries in normal geographical situations." (Ttalicsin the original).

(a) In support of this contention the paragraph contains the following
quotation from: F. A. V. Vallat, "The Continental Shelf", British Ye~rbook
of International Law, Volume 23 (1946), pages 333 ff., 335-336: ". ..Where
a large bay or a gulf is bounded by several States the problemis more corn-
plicated. Perhaps the most equitable solution would be to dividethe submarine
area outside territorial waters among the contiguous states in proportion to
the length of their coast lines. Even if this were adopted aa basis, it would
not provide the necessary boundaries. It would probably not be possible to
draw these according to any simple geometric rule."
But the author does not exclude the equidistance method. This is shown in
the same work on page 336:
"The submarine areas of narrow seas might be divided by a line drawn
equidistant from the shores of the limitrophe states or following the deepest
channel."

(6) Reference is also made to P. C. L. Anninos, The ContinenraE Slielfartd
Public InternationalLaw, 1953,pages 99-100:
"Submarine areas of concern to more than two States: The main type of
case that belongs to this group is that of a gulf or bay, where there are several
littoral States... it is perhaps safe to Say that it is welI-nigh impossible to
formulate one general principle ..."

The last part of this quotation should be read in its full context as follows:
"Probably though, median line techniques could be made to apply if no
islands exist, but even this is problernatic. It is obvious that in such cases as
are being treated here, the principles used in the preceding subsection areof
little help; median line techniques tend to exaggerate the importance of island
shelves. A division based onthe length of the coastline taken aIone, would not
prove much more satisfactory. The results woufd be too arbitrary to rneet and
satisfy the demands of al1the States concerned. On the basis of this it is per-
haps safe to Saythat it is well-nigh impossible to formulate one general prin-
ciple,..."
It is worth noting that the German Mernorial uses a quotation which, in
its full context, deniea division based on the length of the caast lines-an
idea which is strongly emphasized later in the Memorial.

4. In paragraph 44 in the Memorial it is stated that:
"... the equidistance method, by making the distance from the nearest
coastal points the absolute criterion, necessarily attributes undue weight to
projecting parts of the coast, and sa not infrequently leads to inequitable solu-
tions. The danger of overrating the principle of equidistance was clearly en-302 NORTH SEA CONTINENTAL SHELF

visaged during the debate on the principle of equidistance in the International
Law Commission and at the Conference on the Law of the Sea."
In support of this contention the Memorial makes the following reference
to page 436 in the previously mentioned work by McDougal/Burke:
"The least familiarity with the extremely complex geographical conditions,
not to mention condition of use, involved in concrete instances is sufficientto
indicate that any special insistence on a median line is impossible."

Denmark is in full agreement with this quotation, having never denied that,
in certain situations, special circumstances may exist.Itis, however, considered
appropriate to add the following quotation from the same page 436:
"If the term 'special circumstances'is rnutuaily given reasonably restricted
interpretations, the difficultyhere(i.e.,the absence of rules of arbitration) could
be largelyavoided. Ltwas admitted during Cornmittee discussion that no defini-
tion for it could be given,but that certain "special circumstances" werereadiIy

identifiable, including the location of the navigable channel and the complica-
tions occasioned by srnall islands in the vicinity of the two states. Itissurely
rzot~rnreasonablethat astate claiming todepart frorn useof the medianlineshould
be regardedas havingthe burdenof explainingtheprecise conditionswhichcom-
pose the specialcircunrsfances allegedlyjustifying such deviation and that such
conditionsshouldapproximate those menrionedin the First Conimittee." (Italics
added.)
In the same context, the Memorial has the following quotation from page
725 in the said work by McDougal/Burke:

"In the absence of rnutual agreement either on the boundary itself or on a
process of resolvingdisputes, because of the great variety of factors in specific
contexts no rneaningful, detailed recommendation seems possible."
This quotation should, in the Danish view, be given in its full context
(pages 724-725) :

"The principal policy goals here, as with respect to the problem of delimita-
tion of the territorial sea in the same circumstances, are two-fold: first, that
of achieving a fair apportionment of the mutually adjacent resources, taking
into account the conditions that are uniquely relevant in the particular context,
and, second, that of minimizing the occasions for disputes between states that
might cause undesirable tension. The recommendation. previously offered for
achieving the same objectives in connection with delimiting areas of territorial
sea seems also appropriate here. The general principle, presumed as initially
fair to a11parties, is that the boundary be located no closer to one state than
to another. Where abstract delimitation of this type is regarded as inequitable

because of the particular conditions in an area, deviation from the general
principle is obviously desirable. The difficultyhere, of course, is in the deter-
mination of the conditions which make deviation frorn the general principle a
fairer delimitation. The state seeking recognition of a different delimitation,
locating the boundary to its advantage closer to other states, cannot, of course,
insist upon a unilateral determination of the appropriate boundary. Nor should
the state insisting upon the equidistance principle be authorized to obstruct
fina1settlement of the dispute by refusa1to agree to impartial third-party deter-
mination. In sum, the major policy recornmendation is that of imposing an
obligation upon states to resort to third-party decision for resolution of their
boundary disputes. In the absence of mutual agreement either on the boundary
itself or on a process of resolvingdisputes because of the great variety of factors

in specificcontexts no meaningful, detailed recommendation seems possible." COUNTER-MEMORIAL OF DENMARK 303

5, In paragraph 45 in the Memorial it is stated that:
"The effects resulting frorn the utilization of the equidistance technique
under various geographiccircumstances(seesupra,paragraphs 43,441lead tothe
general conclusion that the applicability of the equidistance method becomes
the more questionable as the distance which the boundary line runs from the

Coast increases. A further point which has not always received sufficientcon-
sideration, is that the equidistance method was developed solelyfor the delimi-
tation of territorial waters between two neighbour States",
and reference, without direct quotation, is made to S. Wh. Boggs,Infernnfional
Boundaries, 1940,pages 184-192;iclem,"Delimitation of Seaward Areas under
National Jurisdiction", Americnn Journal of Infernational Law, Volume 45
(195l), pages 240-266.
However, the latter work contains the following passage (on p. 260):

".. . developing technologies may bring into grasp in the relatively near
future some of the great resources of the sea and of the sea bed and its subsoil
at very considerable distances frorn shore in at least a fewareas .. .,sorneprin-
ciple should be formulated for the delimitation of the contiguous zones between
adjacent states. Theprincigfe here enunciared(i.e., median line) will, the writer
hopes, prove tobe of riniversalapplicability." (italics added),
and further, on page 262:
"The most reasonable and just line would be one laid down on "the median

line" principle-a line every point of which is equidistant from the nearest
points on the seaward lirnits of the territorial sea of the two states concerned."
6. Paragraph 47 in the Mernorial states that:

"Maritime boundaries established by treaty are not comrnon. State practice
in this field has justly been described as sparse and inconcIusive."
(a) This contention is supported by the following quotation frorn David
J. Padwa, International and ComparativeLaw Qrrarterly,Vol. 9(1960),page 629:

"State practice ...has not onIy been sparse, but inconclusive. Whileserreral
techniques have been utilized in the occasional treaties deIimiting maritime
boundaries, their reference is to local geagraphical conditions and they con-
tain little of general applicability."
In thiscontext it is also interesting to read what is said about the equidistance
principle on page 652 in the same work:
"The principle of equidistance is not a mandatory rule of international law
relating to submarine boundaries until the Geneva Convention enters into

force. Nevertheless, States rnay,prior to that time, unilaterally utilize that prin-
ciple to determine the subrnarine frontier; for, properly used, no other State
can altege a better clairn to the area in question."
(b) In further support of the German view the Mernorial has the folIowing
quotation frorn U.S. Department of State, Sovereignty of the Sea, Ceogrnphical
BulletinNo. 3 (April 19651, p. 13:
1'Any two countries with contiguous offshorewaters rnay agree on a comrnon
line of demarcation between them, but usually agreements of this type are
non-existent."
Again it should be noted what this work has to say about median lines on

the same page :
"Most frequentiy median lines are the means of expressing boundaries be-
tween adjacent states, starting at the baseline and extending seaward, first be-304 NORTH SEA CONTINENTAL SHELF
tween territorial seas and then between continental shelves of the two states
concerned. They ais0 serveto separate the waters of opposite states which have
rnerging territorial seas and/or continental shelves..
A median line .. .has proved to be the best solution for delineating water
areas between sovereignties.In both theory and practice the geometrical prin-
cipIe involved in determining the median line is the rnost satisfactory which

has so far been devised,lending itselfadmirably ta the construction of equitable
boundaries between states."
7. Paragraph 56 inthe Mernorial contains the followingpassage:
"... two elernentsare generaliy demanded for the development of customary
law: constant practice extending over some considerable time and a legal con-
viction in support of this practice."

Referring, without direct quotation, to O'Connell, InteriîationalLaw, 1965,
Volume 1, pages 15 et seq.,paragraph 56at the bottom goes on to Say:
"The few manifestations in favour of the equidistance principle, which are,
rnoreover, contested, certainly do not sufficefor the development of customary
law."
In this connection it should be noted what O'Connel1wrote in the said work
Cpp.27-28)concerning the question of the Continental Shelf convention as
customary law:

"The attempt to codify the law of the sea which was begun by the Jnter-
national Law Commission in 1952 and resulted in the Geneva Conference
organised by the United Nations, in 1958,is illustrative of the point. When the
Commissioncomrnenceditswork the Continental Shelfdoctrine wasembryonic
and the subject of considerable controversy. Accordingly there was wide dis-
agreement arnong the members of the Commission on the doctrine as one of
law. However, the debates that occurredin the Commission over the subsequent
years served the useful purpose of an exhaustiveexamination of the arguments
pro and con, with the result that the area of disagreement narrowed as con-
viction intensified.During the sarne period State practice on the matter rnulti-
plied at a considerable rate, and was channelled by reference to the Comrnis-
sion's reflections. When the Commission's drafts on the law of the sea were
presented to the nations at Geneva in 1958the Continental Shelf section was
the one that aroused the least controversy. One isjusfifed in concludingthnt
the ContinentalShelf Conventionthen adopted isdeclaratory of the law which
crystallised some time duringthe drafiingpeviod."(Italics added.)

8. Paragraph 93 in the Memorial contains this passage:
"Contractual agreements between the States concerned are the best method
of arciving at a just and equitable solution in the apportionment of the sub-
marine areas of the North Sea. This method is not only given prominence in
Article 6 of the Continental ShelfConvention, but isalso regarded in the litera-
ture on the subject as the only suitable method of dealing adequately with corn-
plex geographical situations."

(a) Supported by the followingquotation from G. E. Pearcy, "Geographical
Aspects of the Law of the Sea", Annals of the Association of American Geo-
graphers, Volume 49 (1959),No. 1,page 20:
"... the coasts of the world are sufficientlyirregular to defy any predeter-
mined universal pattern. Each boundary must be constructed in the light of
its own physical surroundings and in accordance with the principles accepted
in international law. The articles of the Conventions, i.e., the Geneva Con- COUNTER-MEMORIAL OF DENMARK 305

vention on the Continental Shelf providing for the boundaries ...can dono
more than provide an equitable guide for successful agreements."
The author's viewon the median Iineprincipleishowever,expressedon pages

16-17in the same work:
"But since mediadine boundaries are objective they can frequentiy be used
at Ieast as a point of departure in the reaching of agreement. Site of known or
potential resources, location of a navigation channel, or traditional offshore
practices of a state are among special circumstances which may give rise to
modifying or even disregarding completelya median line in affixinaboundary.
For example, a boundary in the territorial sea may only roughly approximate
a median line, compensating for loss of an area in one place by gain in another.
Despite suchdeparturesfrom a formula the actualprecisely consfrucredmedian
Iinestands as a posentialmeansof establishingfair and Iastingoffshorebound-
aries."(Italics added.)
(b) In further support of the German view a quotation is made from:
R. Young, AmericanJournal ofInternationalLaw,Volume 52 (19581,page 738:

"One is led by these considerations to the conclusion that, in spite of the
effort in Article 6 to provide an acceptable method of deterrnining boundaries
in the event of disagreement, the only reliable boundary line remains one fixed
by agreement or by the judgrnent of a competent tribunal."
Thisquotation ought to beread in its fullcontext (pp, 737-738)as folIows:
"A further technical difficultyin Article 6 arises with respeitsprovision
that boundary lines shall be constructed with reference to the respective base-
lines of the states concerned.. .Presumably the draftsmen of Article 6 con-
sidered that the baselines there referreto should be those laid down in ac-
cordance with the cornpanion Convention on the Territorial Sea and Contigu-
ous Zone ... An associate problem arising from the same situation is that a

shelf boundary drawn under the rule in Article 6 may not necessarily link up
with a boundary drawn through territorial waters on a different basis-thus
creatinga hiatus and possibly even some embarrassment. One is led by these
considerations to the conclusion that, in spite of theeffort in Article 6to provide
an acceptable method of determining boundaries in theevent of disagreement,
the only reliable boundary line remains one fixed by agreement or by the judg-
ment of a competent tribunal."
Against this background it appears that the said quotation in the Mernorial
has been given a much broader scope than originally intended by the author.

Annex16

(See pocker insideback cover)