Documents submitted to the Court after the closure of the Written Proceedings (Documents filed by the Parties on their own initiative)

PLEADINGS,ORAL
-

NORTHSEACONTINENTAL
SHELFCASES
(FEDERAL REPUBLICOF GERMANYIDENMARK;
FEDERAL REPUBLICOF GERMANYINETHERLANDS)

VOLUMEII

COUR INTERNATIONALE DE JUSTICE

MÉMOIRES,PLAIDOIRIESETDOCUMENTS

AFFAIRESDU PLATEAU
CONTINENTAL DE LA MER

DU NORD
(RÉPUBLIQUEFÉDÉRALE D'ALLEMAGNEIDANEMARK;
RÉPUBLIQUEFÉDÉRALE D'ALLEMAGNEIPAYS-BAS)
VOLUMEII SECTION A

DOCUMENTS FILED BY THE PARTJES
ON THElR OWN INITIATlVE

SECTEONA

DOCUMENTS DÉPOSÉS PAR LES
PARTJESSUR LEUR PROPRE INITIATIVE DWUMENTS PILED BY DENMARK AND THE NETHERLAPIDS

S. DOCUMENTSFlLED BY THE AGENTS EOR TELE GOVERVMENTS
OF DENMARK AND THE NETHERLANDS '

Note from fhe DanishEmbassy at Canberrato theAustrafiari
Department ofExberml dfctirsDaied J Juiy 1968

The Royal Da&.h Embassypresentsits compliments to the Department of
External Anairs and with reference to previous oorrespondence, Iatest the
Department's Note of 18 March 196811558/1/39),has the honour to ask for
the Department's assistance in conneciion with problems arising ouof the
proceedings in the International Courof Justice for the delimitation of the
continental shelf between the NetherIands and the Federal Republic oGer-
many, on the one hand, and Denmark and the Federal RepublicofGermanp
on the 0th.
As a consequene of the German "Reply" during the proceedings, the
question of the Australian delimitation of the continental shelf has hofme
evengreater importance. TheGerrnan Reply considers the delimitation btwm
the Australian Statesan example of a deviation from the principIe of equi-
distance.In an"Annex" regarding the delimitation it is thus stated:

"22 November 1967
The Commonwealth of Australia
Note: This isan exampie of international lawasapplied betwee nhe indi-
vidual States ofa Federation. Whether the Australian continental sklf is
subjectedto thejurisdiction ofthe individual States or the Federation appears
to be a controversial issue. The boundary lininthe following Act based
an agreements between the States concemed differIargelyfrom equidistance,
particularlyas the frontier between Victoria and South Australia icon-
cerned. Petroleum (SubrnergedLands) Act, 1968 (entered into forceon
1 April 1968j."
Based on the valuable material already receivedthrough thEmbassy from
the Depanment of Extemai Affairs,the Danish Ministry of ForeignMairs
has advised the Governrnent's Legal Adviser, Sir Humphrey Waldock, Palais
des Nations, Place des Nations, Geneva,as per aitached copy of letter with
enclosure. However,the Embassy has beeninstructed to approach the Depart-
ment of External Affairs in order to obtain the adequate repliesto the following
questions:

1. On which principles has the remaining Australian delimitation of the
continentalsheIf in relation to foreign States, i.e., Jndcrnesia,inclucling the
Islandof Timor, andprobably also New Zealand beenbased? Has this or these
delimitations ben made uniIaterallyor according to an agreement with the
country or countrieconcerned?
2. %t principles of delimitation between the individual Australian States
and between AustraIiaand her "Territories" have been fundamental for the
negotiations referred in the"Hansard" (18 October 1967.House of Repre-
sentatives) page1945 (copy of which is enclosed)as having in some cases
"presented delicate political problms"?

See Nos. 39 an40,pp. 385and386, ih.292 . . NORTH SEACONTINENTAL SHELF 8

U the principle of equidistance has been takenas a startingpoint duringthe
negotiations for settlhg the delimitation, it is furthermoreof geai interest to
he advised about the reasons why thisprinciple has in some individual cases
ben subjectto deviation, e.g.,in the delimitation between Western Australia
and South Australia where the continental shelf boundary seems to run as an
extension of theState boundary, parallel to the 130th Iongitude.
If an Australian map showing the lines of equidistance as sucha ,swelI as
the actual boundaries of the continental shelf is at hand, such,map would k
of great interest.
UnfortunateIy, it has to be pointed out that a reply to the questions raised
above is consideredvery urgent as the Danish "Rejoinder" isalready under
preparation.
While expressing in advanΠits appreciation.ofthe assistance in this matter,
the Royal Danish Embassy avails itself of this ogportunity to renew to the
Department of Extemal Affairs the assuranoes of its highest consideration.

Canberra, l July 1968.
I
,'

I DOCUMENTS FILED BY DENMARK AND THE NETHERLANDS 243

Noie froin theAusiralian DeparitrientofExiernal Afiairs tothe
Royal Danish Eïnbnssyin Au fralia,Daled 3 September 1968

The Department of Extemal Affairs prescritsits compliments to the Royal
Danish Embassy and has the honour to refer to the Embassy's Note No. 23
of 1 July 1968,concerning the Australian practice in relation to the delimitation
of the continental shelf.
Australia does nor have a common continental shelf with New Zealand oc
with the Island of Timor. A common shelf cxists beiween West Irian and
Australia and West Trian and the Territories of Papua and New Guinea and
boundaries for petroleum purposes in these Iocalities have ken dehed

'unilaterallon the principle of equidistance and by medianIines as mentioned
in t+ Convention on the Continental Shelf. There is also a common shelf
ktweeri the Island of Bougainville and the British Solomons. In thislocality
the boundary has ken dehed in asimilar manner.
The principles ofthe Convention on the Continental Shelfwere not regarded
as being applicable to the fixing of continental shelf boundarifor petroleum
purposes between one Australian State and another orktween an Australian
State and an Australian Territory. The Convention principles were merely
takenas a guide for these purposes.
The median and equidistance principles were usedin the following cases:

(a) between the State of Western Australia and the Northem Tcrritory of
Australia;
(b) between the Stateof Western Australia and the Territory ofAshmore and
Cartier Islands, and
(c) between the State of Queensland andthe Northern Territory of Australia.

(In thecase of (cl,part of the boundary was agreed ai lines offiveminutes of
arc of latitude and longitude approximating the line of equidistance.)
In cases other than those mentioned in the immediately preceding paragraph
the continental shelfboundaries for petroleum purposes betweenthe Australian
States and betwecna State and a Territory were fixed having regard to con-
venience and a varicty ofother purely localand domestic wnsiderations that
donot appear toprovide any useful guide forthe purposes of the procsedings
in the International Court of Justice. For the Embassy's information, devia-
tions 'from the median and equidistance principles have ben agreed upon as
follows:

(a) between the State of Queensland and the State ofNew South Wales-
an agreed line that is a compromise between the prolongation of the land
boundary and the line of equidistance;
(6) between the State of New South Wales and the State of Victoria-an
agreed line that approximates to the line of equidistance;

(c) between the State of Victoria and the State of Tasmania-in part an
agreed linethatisidentical with the "Letters Patent Line(seenote below)
for those States, with extensions to the south-west and the south-mst
which approximate to a median line between the States;
(d) betwacn the State of Vicioria and the State of South Australia-an agroed
line that iacompromise between the prolongation of the land boundary
and the line of equidistanc;294 NORTH SBA CONT~NENTALSHELF
(el betweenthe State of South Australia and the State of Western Australia-
an agreed line that ia prolongation of the land boundary; and

(f) line that commencesf inethe West as taemedian line, then in the Torres

Strait is th"Lettws Patent Line" (seenote below) for the Stat(a median
Unewould cross and recross this line) and then furthereast,in the Gulf
of Papua, isthe southern boundary of petroleum exploration titles granfed
under Territory legislation that were current at the time of agreement.
The "Letters Patent Line" referred tunder(cl and (f) above is the Iine fixed
by executive action many years aga for the sole purpose of determining the
State ofTerritory tuwhich certain isIandsoffAustralia belong.
The Department regrets that rnaps showiag the medianJinea snd lines of
equidistance in relation to the boundaries referred to above are not available.
In order to avoid confusion with regard to the scopeof the Australianoff-

shore petroleum legislation, the Department believesthat it migfx usefulto
bring to the Embassy's attention certain observations with respect to the
Second Schedule of the Act that were made by the Minister for National
Development and the Attorney-General in the House of Representatives on
18 and 26 October 1967respectively. Theseappear inthe Hansards forthose ,
days aE pages 1946(firstcolumn) and 2379(second caIumn) andrnake it clear
that the Act applies only to so much of the subrnerged Iands within the areas
describedin the Second Schedule as havethe characrer eitherof territorial
seabedor of continental shelf within the meaning of the Geneva Convention.
The Department of Extemal Affairs avails itself of this opportunityto
renewto the Royal Danish Embassy the assuranceof its highest consideration.

CANBERRA ACT.
31 September 1968. DOCUMENTS FILED BY DENMARK AND THE NETHERLANDS 295

Exfractfrom theAusdralianHouseofRepre~entarivesHamord,
18 Ocrober1967,Page 1946

This isthe effectof the PetroIeum (Ashmore and Cartier Tslands)BiII.
1 should make the point here that the areaç outlinby the dotted lineon
the illustrative maps are not al1continental shelf. The appwhich wehave
adopted has ben to endose cornpararively large areas which are dexribed in
detailinthe Second Schedule to the Bill. Wowever,the Bill specificalIyapplies
onlyin relation to exploration for, and exploitaof,the petroleum resourca
of such submerged lands included in the areas descrlbed as have the character,
either of seabed and subsoil kneath territorial watersofrcontinental shelf
within the menningof the International Convention. This scheme which we
haveadopted has a duaI purpose. Eirstly, it perrnitsAustralia to take advantage
of the provisions of the Convention regarding exploitabilitAs technology
advances, and exploitatioin greater depths becomes possible the outer limits
of the shelf for the purpose of this Bill are autornatically adjusted.
Secondly, it is essential in these adjacent areas where petroleum operations
are undertaken, to have applying a general body of law suchansappropriate
criminal code, provision for workrnen'scompensation, for navigational safety.
and the like. It will be noted that Iirof the Bill deals specificallywith this
question of application of laws. In brief, it provides that the provision of the
laws in force ia State or Territory and as in force from tirne to Lime,appEy
in the adjacentaEa. This willcover,as appropriate, not only State laws and
TerritotyOrdinanoes but also Commonwealth laws.
I come now to Part IiIofthe Bill dealing with miningfor petroleum. This
is the Çommon Mining Code referred toin the Commonwealth-State Agrae-
ment. It has beenworked out by the States and the Commonwealth in conjunv
tilin. A1 said earlier in the devisingof the code we sought to be both tealistic

and forward-looking. We have been assisted by comments, criticisms and
suggestions made by the offshore petroleum industry following the initial
staternentto al1seven Parliarnents in November 1965. One of the purposes of
that initial statement was to make known to the companies concerned in
offshore work what ground rules the Govemments had in minci. Thus not
onlywould there 6e no misunderstanding when the actual legislation was
introduced, but also the industry had the opportunity of expressing its views.
1say at once that the Iegislation ken irnproved asaresult of the co-opera-
tjon which we have received from the industry.
Inow seek leaveto incorporate in Hansard, as part of my second reading
speech, a statement outlining thmore important provisions of the Common
Mining Code asset out in the sevenBilThe statement alsa makes appropriate
cross references to relevant clauses Inthe Commonwealth-State Agreement.
Mr. DEPWT YPEAKER (Mr. LucockGThere king no objection, Ieave is
granted.

Mr. FAIRBARN-Theadministration of the Mining Code in respect of each
adjacent area wilas providedby clause 9 of the Agraement, be in the hands
ofa desi~nated authoritv. Provision Is made in Division 1. clau15.of the
Mining Code for the aipointment of designated authoritiés by asrangement
between the Governor-General and the Covernor of a State.In the case of
Statesitis intended that the designated authority willx the Minister for296 , NORTH SEA CONTINENTAL SHELF
Mines and indeed this Minister iso nominated in each of the StateBills.
Jnthe caseof Territoriesofthe Commonwealth, the designated authority will
k mmy colleague, the Miniçterfor Territorie1understand tkat itis my col-

league'sintention texecutean instrumentofdelegarionso that the administra-
tionof theIegisIationin theNorihernTerritoryand inPapua and New Guinea
will be through the Territory Administrations.
The çrux of the inter-relationship between the States and the Commonwealth
is contained in dause 11of the AgreementIn brief thcIauseprovides that in
the administration of theCommon Mining Code the States wilI consult the
Commonwealth on al1aspects which may affect the Commonwealth's own
specialresponsibilities under the Constitution. The arrangement wvers matters
such as defence,externaaffai trs,e andcommercewith other coirntries, and
among the States, immigration, customs,navigation andso on. 1
298 NORTH SEA CONTINENTALSHELF
the outer ~irnitèomorrow.This presents the draîtsmen ofan Act such as this
with a problem. The Bill was Qafted on the basis of application to "areas".
The devioeadopted was to draw the seriesof"picture £ramesMthat honourable
memkrs will see in themaps containedin the booklet which has been distri-
buied. The legislation makes cIear,and this is recognised bynotations onthe
maps thernselves, that the legislation will apponly to so muçh of the sub-

mergedlands within aparticiilarframe as has the character either of territorial
seabed or of continental shelf within the meaning ,of the convention with its
varying limits.
In al1caseswhere Australian territorisopposite or adjacent to the territory
of another country, regard has been had, and wilI be had, to the relevant
principles relating to delimitatof a country's continental shelf. This would
apply asbetwcenAustralia and Portuguese Timor and Ausrraliaand Indonesia.
1think no comment is needed from me on the domesticboundaries between
State and State, and betweenStatteand Territory.These have ...-- .- .
l

DOCUMENT FILEDBY THE FEDERAL REPUBLIC OF GERMANT 299

II.DOCUMENT FI'LED BY THE AGENT FOR THE GOVERNMENT
OF THE FEDER AL REPUBLIC OF GERMANT

(Translation)

Complicationsof a Border Dispure
by S. E. Werners,TheHague (From the Netherlands Juristenblad,
1968No. PYpages 224 and 225, 2Mnrch 1958)

"One of the questions over which the Surinamese and Guyanese Govern-
ments have been at variancefor years is the delimitation of the continental

shelPbetween the two countries. As the issue involves problems that lie Inthe
international sphere, according to Article 3, paragraph lof the Statute the
Kingdom of the Netherlands is obliged to take action Inthi satter. An ex-
amination of this question frorn the legal aspect reveals one or two complica-
tions that are interesting enough for consideration here.
The Surinamese argument js that the border between the territorial sea and
the continental shelfwith Guyana jaline(Note: interrupredline in the attached
map a: the black linis the equidistance line claimeby Guyana) running ten
degrees coastwards of true north in extension of thewestern border of the
Corantijn River. Guyana, however, has always invoked the principle of equi-
distanceas laid down in the Geneva Convention on the Continental Shelf
concluded in Geneva on 29 April 1958.It was determined at that conference
that the delimitation of the continental shfor adjamnt oropposite coastal

States should be laid down by means of an agreement Getween those States,
but that ifno agreement existed and there were no special circumstances
justifying anyother border the latter should be determind by applying the
equidistance line drawn from the nearest points of the baselines from which
thewidth of the territorial seas of the States concernemeasured,
It is well known that the Netherlands, in casu the Kingdom of the Nether-
lands, has for maniyyears based its claims against neighbouring countries to
the continental shelofthe North Seaon the same principleas Guyana. True,
negotiation with the Federal Republic of Germanyledin 1964 ttheconclusion
of thetreatytxtween the two countries, but Article 2 of that treaty exprwsly
lays down that its provisions do not influence the question of the coursof
national boundaries in the Ems estuary. Both contracting pa~ies reservetheir
legal standpoints in this respect. Similarly, subsequent negotiations between
the two countries did not lead to any settlement, and in the communiqué

issued by the International Court of Justice No. 6711of 21 February 1967 it
was stated that the Court had ben asked to give a decision on this legal
dispute.
There is no doubt that the Kingdom of the Netherlands will put forward
strong arguments to try and convince the Court that it is in the tighIn al1
probabiIity it can be assurned that the Kingdom, in its Counter-Mernorial
of 20 February 1968 3,wiEldefend the equidistance principle in favour of the
Netherlands with forceful arguments. The Federal Republic of Germany, if

See p.47, supra, and Nos. 41, 43 and 44, pp. 386,and7388, infra.
S~ee1,pp. 307-38s. . .,
300 NORTH SEA CONTINENTALSHELE
it has notalready done so, will certainly not omitto invokespecial circurn-
stances which the convention recognizes as exceptional grounds. If,during
the evaluation of thesedivergent legal standpointsby the international Court
of Justice, Surinam or the Kingdom of the Netherlands, too, were to ask the
Court for a decision-a step which would bewelcorne-then a calIision of the
interests of partof the Kingdom would be aImost unavoidable. This matter

will cal1for closer studin its wider context at the appropriate time.
In conclusion, itisto behopedthat thesecomplications wiIlnot be circum-
vented by the expulsion of Guyanese citizens by the SurinameseGovernment,
which could cause considerable harm to international legal order as wdl as
good neighbourly relations between these two South Amecicancountries."