NORTH SEA CONTINENTAL SHELF

(Federal Republic of Germany / Denmark; Federal Republic of Germany /

Netherlands)

International Court of Justice

February 20, 1969

General List: Nos. 51 & 52

JUDGMENT OF 20 FEBRUARY 1969

Declarations:

Judge Sir Muhammad Zafrulla Khan

Judge Bengzon

Separate Opinions:

President Bustamante y Rivero

Judge Jessup

Judge Padilla Nervo

Judge Ammoun

Dissenting Opinions:

Vice-President Koretsky

Judge Tanaka

Judge Morelli

Judge Lachs

Judge ad hoc Sorensen

*3 Continental shelf areas in the North Sea-Delimitation as between adjacent States-Advantages and disadvantages of the equidistance method-Theory of just and equitable apportionment-Incompatibility of this theory with the principle of the natural appurtenance of the shelf to the coastal State-Task of the Court relates to delimitation not apportionment.

The equidistance principle as embodied in Article 6 of the 1958 Geneva Continental Shelf Convention-Non-opposability of that provision to the Federal Republic of Germany, either contractually or on the basis of conduct or estoppel.

Equidistance and the principle of natural appurtenance-Notion of closest proximity-Critique of that notion as not being entailed by the principle of appurtenance-Fundamental character of the principle of the continental shelf as being the natural prolongation of the land territory.

Legal history of delimitation-Truman Proclamation-International Law Commission-1958 Geneva Conference-Acceptance of equidistance as a purely conventional rule not reflecting or crystallizing a rule of customary international law-Effect in this respect of reservations article of Geneva Convention-Subsequent State practice insufficient to convert the conventional rule into a rule of customary international law-The opinio juris sive necessitatis, how manifested.

Statement of what are the applicable principles and rules of law-Delimitation by agreement, in accordance with equitable principles, taking account of all relevant circumstances, and so as to give effect to the principle of natural prolongation-Freedom of the Parties as to choice of method-Various factors relevant to the negotiation.

*4 Present: President BUSTAMANTE Y RIVERO; Vice-President KORETSKY; Judges Sir Gerald FITZMAURICE, TANAKA, JESSUP, MORELLI, Sir Muhammad ZAFRULLA KHAN, PADILLA NERVO, FORSTER, GROS, AMMOUN, BENGZON, PETRIN, LACHS, ONYEAMA; Judges ad hoc MOSLER, SORENSEN; Registrar AQUARONE.

In the North Sea Continental Shelf cases,

between

the Federal Republic of Germany,

represented by

Dr. G. Jaenicke, Professor of International Law in the University of Frankfurt am Main,

as Agent,

assisted by

Dr. S. Oda, Professor of International Law in the University of Sendai,

as Counsel,

Dr. U. Scheuner, Professor of International Law in the University of Bonn,

Dr. E. Menzel, Professor of International Law in the University of Kiel,

Dr. Henry Herrmann, of the Massachusetts Bar, associated with Messrs. Goodwin, Procter and Hoar, Counsellors-at-Law, Boston,

Dr. H. Blomeyer-Bartenstein, Counsellor 1st Class, Ministry of Foreign Affairs,

Dr. H. D. Treviranus, Counsellor, Ministry of Foreign Affairs,

as Advisers,

and by Mr. K. Witt, Ministry of Foreign Affairs,

as Expert,

and

the Kingdom of Denmark,

represented by

Mr. Bent Jacobsen, Barrister at the Supreme Court of Denmark,

as Agent and Advocate,

assisted by

Sir Humphrey Waldock, C.M.G., O.B.E., Q.C., Professor of International Law in the University of Oxford,

as Counsel and Advocate,

H.E. Mr. S. Sandager Jeppesen, Ambassador, Ministry of Foreign Affairs,

Mr. E. Krog-Meyer, Head of The Legal Department, Ministry of Foreign Affairs,

Dr. I. Foighel, Professor in the University of Copenhagen,

Mr. E. Lauterpacht, Member of the English Bar and Lecturer in the University of Cambridge,

*5 Mr. M. Thamsborg, Head of Department, Hydrographic Institute,

as Advisers,

and by

Mr. P. Boeg, Head of Secretariat, Ministry of Foreign Affairs,

Mr. U. Engel, Head of Section, Ministry of Foreign Affairs,

As Secretaries,

and between

the Federal Republic of Germany,

represented as indicated above,

and

the Kingdom of the Netherlands,

represented by

Professor W. Riphagen, Legal Adviser to the Ministry of Foreign Affairs, Professor of International Law at the Rotterdam School of Economics,

as Agent,

assisted by

Sir Humphrey Waldock, C.M.G., O.B.E., Q.C., Professor of International Law in the University of Oxford,

as Counsel,

Rear-Admiral W. Langeraar, Chief of the Hydrographic Department, Royal Netherlands Navy,

Mr. G. W. Mass Geesteranus, Assistant Legal Adviser to the Ministry of Foreign Affairs,

Miss F. Y. van der Wal, Assistant Legal Adviser to the Ministry of Foreign Affairs,

as Advisers,

and by

Mr. H. Rombach, Divisional Head, Hydrographic Department, Royal Netherlands Navy,

as Deputy-Adviser,

THE COURT,

composed as above,

delivers the following Judgment:

By a letter of 16 February 1967, received in the Registry on 20 February 1967, the Minister for Foreign Affairs of the Netherlands transmitted to the Registrar:

(a) an original copy, signed at Bonn on 2 February 1967 for the Governments of Denmark and the Federal Republic of Germany, of a Special Agreement for the submission to the Court of a difference between those two States concerning the delimitation, as between them, of the continental shelf in the North Sea;

(b) an original copy, signed at Bonn on 2 February 1967 for the Governments of the Federal Republic of Germany and the Netherlands, of a Special Agreement for the submission to the Court of a difference between those *6 two States concerning the delimitation, as between them, of the continental shelf in the North Sea;

(c) an original copy, signed at Bonn on 2 February 1967 for the three Governments aforementioned, of a Protocol relating to certain procedural questions arising from the above-mentioned Special Agreements.

Articles 1 to 3 of the Special Agreement between the Governments of Denmark and the Federal Republic of Germany are as follows:

'Article 1

(1) The International Court of Justice is requested to decide the following question:

What principles and rules of international law are applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary determined by the above-mentioned Convention of 9 June 1965?

(2) The Governments of the Kingdom of Denmark and of the Federal Republic of Germany shall delimit the continental shelf in the North Sea as between their countries by agreement in pursuance of the decision requested from the International Court of Justice.

Article 2

(1) The Parties shall present their written pleadings to the Court in the order stated below:

1. a Memorial of the Federal Republic of Germany to be submitted within six months from the notification of the present Agreement to the court;

2. a Counter-Memorial of the Kingdom of Denmark to be submitted within six months from the delivery of the German Memorial;

3. a German Reply followed by a Danish Rejoinder to be delivered within such time-limits as the Court may order.

(2) Additional written pleadings may be presented if this is jointly proposed by the Parties and considered by the Court to be appropriate to the case and the circumstances.

(3) The foregoing order of presentation is without prejudice to any question of burden of proof which might arise.

Article 3

The present Agreement shall enter into force on the day of signature thereof.'

Articles 1 to 3 of the Special Agreement between the Governments of the Federal Republic of Germany and the Netherlands are as follows:

'Article 1

(1) The International Court of Justice is requested to decide the following question:

*7 (2) The Governments of the Federal Republic of Germany and of the Kingdom of the Netherlands shall delimit the continental shelf of the North Sea as between their countries by agreement in pursuance of the decision requested from the International Court of Justice.

Article 2

(1) The Parties shall present their written pleadings to the Court in the order stated below:

1. a Memorial of the Federal Republic of Germany to be submitted within six months from the notification of the present Agreement to the Court;

2. a Counter-Memorial of the Kingdom of the Netherlands to be submitted within six months from the delivery of the German Memorial;

3. a German Reply followed by a Netherlands Rejoinder to be delivered within such time-limits as the Court may order.

(2) Additional written pleadings may be presented if this is jointly proposed by the Parties and considered by the Court to be appropriate to the case and the circumstances.

(3) The foregoing order of presentation is without prejudice to any question of burden of proof which might arise.

Article 3

The present Agreement shall enter into force on the day of signature thereof.'

The Protocol between the three Governments reads as follows:

'Protocol

At the signature of the Special Agreement of today's date between the Government of the Federal Republic of Germany and the Governments of the Kingdom of Denmark and the Kingdom of the Netherlands respectively, on the submission to the International Court of Justice of the differences between the Parties concerning the delimitation of the continental shelf in the North Sea, the three Governments wish to state their agreement on the following:

1. The Government of the Kingdom of the Netherlands will, within a month from the signature, notify the two Special Agreements together with the present Protocol to the International Court of Justice in accordance with Article 40, paragraph 1, of the Statute of the Court.

2. After the notification in accordance with item 1 above the Parties will ask the Court to join the two cases.

3. The three Governments agree that, for the purpose of appointing a judge ad hoc, the Governments of the Kingdom of Denmark and the Kingdom of the Netherlands shall be considered parties in the same interest within the meaning of Article 31, paragraph 5, of the Statute of the Court.'

Pursuant to Article 33, paragraph 2, of the Rules of Court, the Registrar at once informed the Governments of Denmark and the Federal Republic of Germany of the filing of the Special Agreements. In accordance with Article 34, paragraph 2, of the Rules of Court, copies of the Special Agreements were transmitted to the other Members of the United Nations and to other nonmember States entitled to appear before the Court.

*8 By Orders of 8 March 1967, taking into account the agreement reached between the Parties, 21 August 1967 and 20 February 1968 were fixed respectively as the time-limits for the filing of the Memorials and Counter- Memorials. These pleadings were filed within the time-limits prescribed. By Orders of 1 March 1968, 31 May and 30 August 1968 were fixed respectively as the timelimits for the filing of the Replies and Rejoinders.

Pursuant to Article 31, paragraph 3, of the Statute of the Court, the Government of the Federal Republic of Germany chose Dr. Hermann Mosler, Professor of International Law in the University of Heidelberg, to sit as Judge ad hoc in both cases. Rcferring to the agreement concluded between them according to which they should be considered parties in the same interest within the meaning of Article 31, paragraph 5, of the Statute, the Governments of Denmark and the Netherlands chose Dr. Max Serensen, Professor of International Law in the University of Aarhus, to sit as Judge ad hoc in both cases.

By an Order of 26 April 1968, considering that the Governments of Denmark and the Netherlands were, so far as the choice of a Judge ad hoc was concerned, to be reckoned as one Party only, the Court found that those two Governments were in the same interest, joined the proceedings in the two cases and, in modification of the directions given in the Orders of 1 March 1968, fixed 30 August 1968 as the time-limit for the filing of a Common Rejoinder for Denmark and the Netherlands.

The Replies and the Common Rejoinder having been filed within the timelimits prescribed, the cases were ready for hearing on 30 August 1968.

Pursuant to Article 44, paragraph 2, of the Rules of Court, the pleadings and annexed documents were, after consultation of the Parties, made available to the Governments of Brazil, Canada, Chile, Colombia, Ecuador, Finland, France, Honduras, Iran, Norway, Sweden, United Kingdom of Great Britain and Northern Ireland, United States of America and Venezuela. Pursuant to paragraph 3 of the same Article, those pleadings and annexed documents were, with the consent of the Parties, made accessible to the public as from the date of the opening of the oral proceedings.

Hearings were held from 23 to 25 October, from 28 October to 1 November, and on 4, 5, 7, 8 and 11 November 1968, in the course of which the Court heard, in the order agreed between the Parties and accepted by the Court, the oral arguments and replies of Professor Jaenicke, Agent, and Professor Oda, Counsel, on behalf of the Government of the Federal Republic of Germany; and of Mr. Jacobsen and Professor Riphagen, Agents, and Sir Humphrey Waldock, Counsel, on behalf of the Governments of Denmark and the Netherlands.

In the course of the written proceedings, the following Submissions were presented by the Parties:

On behalf of the Government of the Federal Republic of Germany,

in the Memorials:

'May it please the Court to recognize and declare:

1. The delimitation of the continental shelf between the Parties in the North Sea is governed by the principle that each coastal State is entitled to a just and equitable share.

*9 2. The method of determining boundaries of the continental shelf in such a way that every point of the boundary is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured (equidistance method), is not a rule of customary international law and is therefore not applicable as such between the Parties.

3. The equidistance method cannot be employed for the delimitation of the continental shelf unless it is established by agreement, arbitration, or otherwise, that it will achieve a just and equitable apportionment of the continental shelf among the States concerned.

4. As to the delimitation of the continental shelf between the Parties in the North Sea, the equidistance method cannot find application, since it would not apportion a just and equitable share to the Federal Republic of Germany';

in the Replies:

'May it please the Court to recognize and declare:

1. The delimitation of the continental shelf between the Parties in the North Sea is governed by the principle that each coastal State is entitled to a just and equitable share.

2. (a) The method of determining boundaries of the continental shelf in such a way that every point of the boundary is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured (equidistance method) is not a rule of customary international law.

(b) The rule contained in the second sentence of paragraph 2 of Article 6 of the Continental Shelf Convention, prescribing that in the absence of agreement, and unless another boundary is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance, has not become customary international law.

(c) Even if the rule under (b) would be applicable between the Parties, special circumstances within the meaning of that rule would exclude the application of the equidistance method in the present case.

3. (a) The equidistance method cannot be used for the delimitation of the continental shelf unless it is established by agreement, arbitration, or otherwise, that it will achieve a just and equitable apportionment of the continental shelf among the States concerned.

(b) As to the delimitation of the continental shelf between the Parties in the North Sea, the Kingdom of Denmark and the Kingdom of the Netherlands cannot rely on the application of the equidistance method, since it would not lead to an equitable apportionment.

4. Consequently, the delimitation of the continental shelf in the North Sea between the Parties is a matter which has to be settled by agreement. This agreement should apportion a just and equitable share to each of the Parties in the light of all factors relevant in this respect.'

On behalf of the Government of Denmark,

in its Counter-Memorial:

'Considering that, as noted in the Compromis, disagreement exists *10 between the Parties which could not be settled by detailed negotiations, regarding the further course of the boundary beyond the partial boundary determined by 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 Sea as between the Parties ex aequo et bono, but to decide what principles and rules of international law are applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary, determined by the above-mentioned Convention of 9 June 1965;

In view of the facts and arguments presented in Parts I and II of this Counter-Memorial,

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 1958 on the Continental Shelf.

2. The Parties being in disagreement, unless another boundary is justified by special circumstances, the boundary between them is to be determined by application of the principle of equidistance from the nearest points of the baselines fror which the breadth of the territorial sea of each State is measured.

3. Special circumstances which justify another boundary line not having been established, the boundary between the Parties is to be determined by application of the principle of equidistance indicated in the preceding Submission.'

On behalf of the Government of the Netherlands,

in its Counter-Memorial:

'Considering that, as noted in the Compromis, disagreement exists between the Parties which could not be settled by detailed negotiations, regarding the further course of the boundary beyond the partial boundary determined by the Treaty of 1 December 1964;

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 Sea as between the Parties ex aequo et bono, but to decide what principles and rules of international law are applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary determined by the abovementioned Treaty of 1 December 1964;

In view of the facts and arguments presented in Parts I and II of this Counter-Memorial,

May it please the Court to adjudge and declare:

*11 2. The Parties being in disagreement, unless another boundary is justified by special circumstances, the boundary between them is to be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.

On behalf of the Governments of Denmark and the Netherlands,

in the Common Rejoinder:

'May it further please the Court to adjudge and declare:

4. If the principles and rules of international law mentioned in Submission 1 of the respective Counter-Memorials are not applicable as between the Parties, the boundary is to be determined between the Parties on the basis of the exclusive rights of each Party over the continental shelf adjacent to its coast and of the principle that the boundary is to leave to each Party every point of the continental shelf which lies nearer to its coast than to the coast of the other Party.'

In the course of the oral proceedings, the following Submissions were presented by the Parties:

On behalf of the Government of the Federal Republic of Germany,

at the hearing on 5 November 1968:

'1. The delimitation of the continental shelf between the Parties in the North Sea is governed by the principle that each coastal State is entitled to a just and equitable share.

*12 4. Consequently, the delimitation of the continental shelf, on which the Parties must agree pursuant to paragraph 2 of Article 1 of the Special Agreement, is determined by the principle of the just and equitable share, based on criteria relevant to the particular geographical situation in the North Sea.'

On behalf of the Government of Denmark,

at the hearing on 11 November 1968, Counsel for that Government stated that it confirmed the Submissions presented in its Counter-Memorial and in the Common Rejoinder and that those Submissions were identical mutatis mutandis with those of the Government of the Netherlands.

On behalf of the Government of the Netherlands,

at the hearing on 11 November 1968:

'With regard to the delimitation as between the Federal Republic of Germany and the Kingdom of the Netherlands of the boundary of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary determined by the Convention of 1 December 1964.

May it please the Court to adjudge and declare:

2. The Parties being in disagreement, unless another boundary is justified by special circumstances, the boundary between them is to be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.

4. If the principles and rules of international law mentioned in Submission 1 are not applicable as between the Parties, the boundary is to be determined between the Parties on the basis of the exclusive rights of each Party over the continental shelf adjacent to its coast and of the principle that the boundary is to leave to each Party every point of the continental shelf which lies nearer to its coast than to the coast of the other Party.'

*****

1. By the two Special Agreements respectively concluded between the Kingdom of Denmark and the Federal Republic of Germany, and between the Federal Republic and the Kingdom of the Netherlands, the Parties have submitted to the Court certain differences concerning 'the delimitation *13 as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them'-with the exception of those areas, situated in the immediate vicinity of the coast, which have already been the subject of delimitation by two agreements dated 1 December 1964, and 9 June 1965, concluded in the one case between the Federal Republic and the Kingdom of the Netherlands, and in the other between the Federal Republic and the Kingdom of Denmark.

2. It is in respect of the delimitation of the continental shelf areas lying beyond and to seaward of those affected by the partial boundaries thus established, that the Court is requested by each of the two Special Agreements to decide what are the applicable 'principles and rules of international law'. The Court is not asked actually to delimit the further boundaries which will be involved, this task being reserved by the Special Agreements to the Parties, which undertake to effect such a delimitation 'by agreement in pursuance of the decision requested from the ... Court'-that is to say on the basis of, and in accordance with, the principles and rules of international law found by the Court to be applicable.

3. As described in Article 4 of the North Sea Policing of Fisheries Convention of 6 May 1882, the North Sea, which lies between continental Europe and Great Britain in the east-west direction, is roughly oval in shape and stretches from the straits of Dover northwards to a parallel drawn between a point immediately north of the Shetland Islands and the mouth of the Sogne Fiord in Norway, about 75 kilometres above Bergen, beyond which is the North Atlantic Ocean. In the extreme northwest, it is bounded by a line connecting the Orkney and Shetland island groups; while on its north-eastern side, the line separating it from the entrances to the Baltic Sea lies between Hanstholm at the north-west point of Denmark, and Lindesnes at the southern tip of Norway. Eastward of this line the Skagerrak begins. Thus, the North Sea has to some extent the general look of an enclosed sea without actually being one. Round its shores are situated, on its eastern side and starting from the north, Norway, Denmark, the Federal Republic of Germany, the Netherlands, Belgium and France; while the whole western side is taken up by Great Britain, together with the island groups of the Orkneys and Shetlands. From this it will be seen that the continental shelf of the Federal Republic is situated between those of Denmark and the Netherlands.

4. The waters of the North Sea are shallow, and the whole seabed consists of continental shelf at a depth of less than 200 metres, except for the formation known as the Norwegian Trough, a belt of water 200-650 metres deep, fringing the southern and south-western coasts of Norway to a width averaging about 80- 100 kilometres. Much the greater part of this continental shelf has already been the subject of delimitation *14 by a series of agreements concluded between the United Kingdom (which, as stated, lies along the whole western side of it) and certain of the States on the eastern side, namely Norway, Denmark and the Netherlands. These three delimitations were carried out by the drawing of what are known as 'median lines' which, for immediate present purposes, may be described as boundaries drawn between the continental shelf areas of 'opposite' States, dividing the intervening spaces equally between them. These lines are shown on Map 1 on page 15, together with a similar line, also established by agreement, drawn between the shelf areas of Norway and Denmark. Theoretically it would be possible also to draw the following median lines in the North Sea, namely United Kingdom/Federal Republic (which would lie east of the present line United Kingdom/Norway-Denmark-Netherlands); Norway/Federal Republic (which would lie south of the present line Norway/Denmark); and Norway/Netherlands (which would lie north of whatever line is eventually determined to be the continental shelf boundary between the Federal Republic and the Netherlands). Even if these median lines were drawn however, the question would arise whether the United Kingdom, Norway and the Netherlands could take advantage of them as against the parties to the existing delimitations, since these lines would, it seems, in each case lie beyond (i.e., respectively to the east, south and north of) the boundaries already effective under the existing agreements at present in force. This is illustrated for Map 2 on page 15.

5. In addition to the partial boundary lines FederalRepublic/Denmark and Federal Republic/Netherlands, which, as mentioned in paragraph 1 above, were respectively established by the agreements of 9 June 1965 and 1 December 1964, and which are shown as lines A-B and C-D on Map 3 on page 16, another line has been drawn in this area, namely that represented by the line E-F on that map. This line, which divides areas respectively untimed (to the north of it) by Denmark, and (to the south of it) by the Netherlands, is the outcome of an agreement between those two countries dated 31 March 1966, reflecting the view taken by them as to what are the correct boundary lines between their respective continental shelf areas and that of the Federal Republic, beyond the partial boundaries A-B and C-D already drawn. These further and unagreed boundaries to seaward, are shown on Map 3 by means of the dotted lines B-E and D-E. They are the lines, the correctness of which in law the Court is in effect, though indirectly, called upon to determine. Also shown on Map 3 are the two pecked lines B-F and D-F, representing approximately the boundaries which the Federal Republic would have wished to obtain in the course of the negotiations that took place between the Federal Republic and the other two Parties prior to the submission of the matter to the Court. The nature of these negotiations must now be described.

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

*17 6. Under the agreements of December 1964 and June 1965, already mentioned, the partial boundaries represented by the map lines A-B and C-D had, according to the information furnished to the Court by the Parties, been drawn mainly by application of the principle of equidistance, using that term as denoting the abstract concept of equidistance. A line so drawn, known as an 'equidistance line', may be described as one which leaves to each of the parties concerned all those portions of the continental shelf that are nearer to a point on its own coast than they are to any point on the coast of the other party. An equidistance line may consist either of a 'median' line between 'opposite' States, or of a 'lateral' line between 'adjacent' States. In certain geographical configurations of which the Parties furnished examples, a given equidistance line may partake in varying degree of the nature both of a median and of a lateral line. There exists nevertheless a distinction to be drawn between the two, which will be mentioned in its place.

7. The further negotiations between the Parties for the prolongation of the partial boundaries broke down mainly because Denmark and the Netherlands respectively wished this prolongation also to be effected on the basis of the equidistance principle,-and this would have resulted in the the dotted lines B- E and D-E, shown on Map 3; whereas the Federal Republic considered that such an outcome would be inequitable because it would unduly curtail what the Republic believed should be its proper share of continental shelf area, on the basis of proportionality to the length of its North Sea coastline. It will be observed that neither of the lines in question, taken by itself, would produce this effect, but only both of them together-an element regarded by Denmark and the Netherlands as irrelevant to what they viewed as being two separate and self-contained delimitations, each of which should be carried out without reference to the other.

8. The reason for the result that would be produced by the two lines B-E and D-E, taken conjointly, is that in the case of a concave or recessing coast such as that of the Federal Republic on the North Sea, the effect of the use of the equidistance method is to pull the line of the boundary inwards, in the direction of the concavity. Consequently, where two such lines are drawn at different points on a concave coast, they will, if the curvature is pronounced, inevitably meet at a relatively short distance from the coast, thus causing the continental shelf area they enclose, to take the form approximately of a triangle with its apex to seaward and, as it was put on behalf of the Federal Republic, 'cutting off' the coastal State from the further areas of the continental shelf outside of and beyond this triangle. The effect of concavity could of course equally be produced for a country with a straight coastline if the coasts of adjacent countries protruded immediately on either side of it. In contrast to this, the effect of coastal projections, or of convex or outwardly curving coasts such as are, to a moderate extent, those of Denmark and the Netherlands, is to cause boundary lines drawn on an equidistance basis to leave the *18 coast on divergent courses, thus having a widening tendency on the area of continental shelf off that coast. These two distinct effects, which are shown in sketches I-III to be found on page 16, are directly attributable to the use of the equidistance method of delimiting continental shelf boundaries off recessing or projecting coasts. It goes without saying that on these types of coasts the equidistance method produces exactly similar effects in the delimitation of the lateral boundaries of the territorial sea of the States concerned. However, owing to the very close proximity of such waters to the coasts concerned, these effects are much less marked and may be very slight,-and there are other aspects involved, which will be considered in their place. It will suffice to mention here that, for instance, a deviation from a line drawn perpendicular to the general direction of the coast, of only 5 kilometres, at a distance of about 5 kilometres from that coast, will grow into one of over 30 at a distance of over 100 kilometres.

9. After the negotiations, separately held between the Federal Republic and the other two Parties respectively, had in each case, for the reasons given in the two preceding paragraphs, failed to result in any agreement about the delimitation of the boundary extending beyond the partial one already agreed, tripartite talks between all the Parties took place in The Hague in February- March 1966, in Bonn in May and again in Copenhagen in August. These also proving fruitless, it was then decided to submit the matter to the Court. In the meantime the Governments of Denmark and the Netherlands had, by means of the agreement of 31 March 1966, already referred to (paragraph 5), proceeded to a delimitation as between themselves of the continental shelf areas lying between the apex of the triangle notionally ascribed by them to the Federal Republic (point E on Map 3) and the median line already drawn in the North Sea, by means of a boundary drawn on equidistance principles, meeting that line at the point marked F on Map 3. On 25 May 1966, the Government of the Federal Republic, taking the view that this delimitation was res inter alios acta, notified the Governments of Denmark and the Netherlands, by means of an aide- memoire, that the agreement thus concluded could not 'have any effect on the question of the delimitation of the German-Netherlands or the German-Danish parts of the continental shelf in the North Sea'.

10. In pursuance of the tripartite arrangements that had been made at Bonn and Copenhagen, as described in the preceding paragraph, Special Agreements for the submission to the Court of the differences involved were initialled in August 1966 and signed on 2 February 1967. By a tripartite Protocol signed the same day it was provided (a) that the Government of the Kingdom of the Netherlands would notify the two Special Agreements to the Court, in accordance with Article 40, paragraph 1, of the Court's Statute, together with the text of the Protocol itself; (b) that after such notification, the Parties would ask the Court to join the two cases; and (c) that for the purpose of the appointment *19 of a judge ad hoc, the Kingdoms of Denmark and the Netherlands should be considered as being in the same interest within the meaning of Article 31, paragraph 5, of the Court's Statute. Following upon these communications, duly made to it in the implementation of the Protocol, the Court, by an Order dated 26 April 1968, declared Denmark and the Netherlands to be in the same interest, and joined the proceedings in the two cases.

11. Although the proceedings have thus been joined, the cases themselves remain separate, at least in the sense that they relate to different areas of the North Sea continental shelf, and that there is no a priori reason why the Court must reach identical conclusions in regard to them,-if for instance geographical features present in the one case were not present in the other. At the same time, the legal arguments presented on behalf of Denmark and the Netherlands, both before and since the joinder, have been substantially identical, apart from certain matters of detail, and have been presented either in common or in close co-operation. To this extent therefore, the two cases may be treated as one; and it must be noted that although two separate delimitations are in question, they involve-indeed actually give rise to-a single situation. The fact that the question of either of these delimitations might have arisen and called for settlement separately in point of time, does not alter the character of the problem with which the Court is actually faced, having regard to the manner in which the Parties themselves have brought the matter before it, as described in the two preceding paragraphs.

12. In conclusion as to the facts, it should be noted that the Federal Republic has formally reserved its position, not only in regard to the Danish- Netherlands delimitation of the line E-F (Map 3), as noted in paragraph 9, but also in regard to the delimitations United Kingdom/Denmark and United Kingdom/Netherlands mentioned in paragraph 4. In both the latter cases the Government of the Federal Republic pointed out to all the Governments concerned that the question of the lateral delimitation of the continental shelf in the North Sea between the Federal Republic and the Kingdoms of Denmark and the Netherlands was still outstanding and could not be prejudiced by the agreements concluded between those two countries and the United Kingdom.

***

13. Such are the events and geographical facts in the light of which the Court has to determine what principles and rules of international law are applicable to the delimitation of the areas of continental shelf involved. On this question the Parties have taken up fundamentally different positions. On behalf of the Kingdoms of Denmark and the Netherlands it is contended that the whole matter is governed by a *20 mandatory rule of law which, reflecting the language of Article 6 of the Convention on the Continental Shelf concluded at Geneva on 29 April 1958, was designated by them as the 'equidistance-special circumstances' rule. According to this contention, 'equidistance' is not merely a method of the cartographical construction of a boundary line, but the essential element in a rule of law which may be stated as follows,-namely that in the absence of agreement by the Parties to employ another metbod or to proceed to a delimitation on an ad hoc basis, all continental shelf boundaries must be drawn by means of an equidistance line, unless, or except to the extent to which, 'special circumstances' are recognized to exist,-an equidistance line being, it will be recalled, a line every point on which is the same distance away from whatever point is nearest to it on the coast of each of the countries concerned-or rather, s rictly, on the baseline of the territorial sea along that coast. As regards what constitutes 'special circumstances', all that need be said at this stage is that according to the view put forward on behalf of Denmark and the Netherlands, the configuration of the German North Sea coast, its recessive character, and the fact that it makes nearly a right-angled bend in mid-course, would not of itself constitute, for either of the two boundary lines concerned, a special circumstance calling for or warranting a departure from the equidistance method of delimitation: only the presence of some special feature, minor in itself-such as an islet or small protuberance-but so placed as to produce a disproportionately distorting effect on an otherwise acceptable boundary line would, so it was claimed, possess this character.

14. These various contentions, together with the view that a rule of equidistance-special circumstances is binding on the Federal Republic, are founded by Denmark and the Netherlands partly on the 1958 Geneva Convention on the Continental Shelf already mentioned (preceding paragraph), and partly on general considerations of law relating to the continental shelf, lying outside this Convention. Similar considerations are equally put forward to found the contention that the delimitation on an equidistance basis of the line E-F (Map 3) by the Netherlands-Danish agreement of 31 March 1966 (paragraph 5 above) is valid erga omnes, and must be respected by the Federal Republic unless it can demonstrate the existence of juridically relevant 'special circumstances'.

15. The Federal Republic, for its part, while recognizing the utility of equidistance as a method of delimitation, and that this method can in many cases be employed appropriately and with advantage, denies its obligatory character for States not parties to the Geneva Convention, and contends that the correct rule to be applied, at any rate in such circumstances as those of the North Sea, is one according to which each of the States concerned should have a 'just and equitable share' of the available continental shelf, in proportion to the length of its coastline or sea-frontage. It was also contended on behalf of the Federal Republic *21 that in a sea shaped as is the North Sea, the whole bed of which, except for the Norwegian Trough, consists of continental shelf at a depth of less than 200 metres, and where the situation of the circumjacent States causes a natural convergence of their respective continental shelf areas, towards a central point situated on the median line of the whole seabed-or at any rate in those localities where this is the case-each of the States concerned is entitled to a continental shelf area extending up to this central point (in effect a sector), or at least extending to the median line at some point or other. In this way the 'cut-off' effect, of which the Federal Republic complains, caused, as explained in paragraph 8, by the drawing of equidistance lines at the two ends of an inward curving or recessed coast, would be avoided. As a means of giving effect to these ideas, the Federal Republic proposed the method of the 'coastal front', or facade, constituted by a straight baseline joining these ends, upon which the necessary geometrical constructions would be erected.

16. Alternatively, the Federal Republic claimed that if, contrary to its main contention, the equidistance method was held to be applicable, then the configuration of the German North Sea coast constituted a 'special circumstance' such as to justify a departure from that method of delimitation in this particular case.

17. In putting forward these contentions, it was stressed on behalf of the Federal Republic that the claim for a just and equitable share did not in any way involve asking the Court to give a decision ex aequo et bono (which, having regard to the terms of paragraph 2 of Article 38 of the Court's Statute, would not be possible without the consent of the Parties),-for the principle of the just and equitable share was one of the recognized general principles of law which, by virtue of paragraph 1 (c) of the same Article, the Court was entitled to apply as a matter of the justitia distributiva which entered into all legal systems. It appeared, moreover, that whatever its underlying motivation, the claim of the Federal Republic was, at least ostensibly, to a just and equitable share of the space involved, rather than to a share of the natural resources as such, mineral or other, to be found in it, the location of which could not in any case be fully ascertained at present. On the subject of location the Court has in fact received some, though not complete information, but has not thought it necessary to pursue the matter, since the question of natural resources is less one of delimitation than of eventual exploitation.

18. It will be convenient to consider first the contentions put forward on behalf of the Federal Republic. The Court does not feel able to accept them-at least in the particular form they have taken. It considers *22 that, having regard both to the language of the Special Agreements and to more general considerations of law relating to the regime of the continental shelf, its task in the present proceedings relates essentially to the delimitation and not the apportionment of the areas concerned, or their division into converging sectors. Delimitation is a process which involves establishing the boundaries of an area already, in principle, appertaining to the coastal State and not the determination de novo of such an area. Delimitation in an equitable manner is one thing, but not the same thing as awarding a just and equitable share of a previously undelimited area, even though in a number of cases the results may be comparable, or even identical.

19. More important is the fact that the doctrine of the just and equitable share appears to be wholly at variance with what the Court entertains no doubt is the most fundamental of all the rules of law relating to the continental shelf, enshrined in Article 2 of the 1958 Geneva Convention, though quite independent of it;-namely that the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short, there is here an inherent right. In order to exercise it, no special legal process has to be gone through, nor have any special legal acts to be performed. Its existence can be declared (and many States have done this) but does not need to be constituted. Furthermore, the right does not depend on its being exercised. To echo the language of the Geneva Convention, it is 'exclusive' in the sense that if the coastal State does not choose to explore or exploit the areas of shelf appertaining to it, that is its own affair, but no one else may do so without its express consent.

20. It follows that even in such a situation as that of the North Sea, the notion of apportioning an as yet undelimited area, considered as a whole (which underlies the doctrine of the just and equitable share), is quite foreign to, and inconsistent with, the basic concept of continental shelf entitlement, according to which the process of delimitation is essentially one of drawing a boundary line between areas which already appertain to one or other of the States affected. The delimitation itself must indeed be equitably effected, but it cannot have as its object the awarding of an equitable share, or indeed of a share, as such, at all,-for the fundamental concept involved does not admit of there being anything undivided to share out. Evidently any dispute about boundaries must involve that there is a disputed marginal or fringe area, to which both parties are laying claim, so that any delimitation of it which does not leave it wholly to one of the parties will in practice divide it between them in certain shares, or operate as if such a division had been made. *23 But this does not mean that there has been an apportionment of something that previously consisted of an integral, still less an undivided whole.

***

21. The Court will now turn to the contentions advanced on behalf of Denmark and the Netherlands. Their general character has already been indicated in paragraphs 13 and 14: the most convenient way of dealing with them will be on the basis of the following question-namely, does the equidistance-special circumstances principle constitute a mandatory rule, either on a conventional or on a customary international law basis, in such a way as to govern any delimitation of the North Sea continental shelf areas between the Federal Republic and the Kingdoms of Denmark and the Netherlands respectively? Another and shorter way of formulating the question would be to ask whether, in any delimitation of these areas, the Federal Republic is under a legal obligation to accept the application of the equidistance-special circumstances principle.

22. Particular attention is directed to the use, in the foregoing formulations, of the terms 'mandatory' and 'obligation'. It has never been doubted that the equidistance method of delimitation is a very convenient one, the use of which is indicated in a considerable number of cases. It constitutes a method capable of being employed in almost all circumstances, however singular the results might sometimes be, and has the virtue that if necessary,-if for instance, the Parties are unable to enter into negotiations,- any cartographer can de facto trace such a boundary on the appropriate maps and charts, and those traced by competent cartographers will for all practical purposes agree.

23. In short, it would probably be true to say that no other method of delimitation has the same combination of practical convenience and certainty of application. Yet these factors do not suffice of themselves to convert what is a method into a rule of law, making the acceptance of the results of using that method obligatory in all cases in which the parties do not agree otherwise, or in which 'special circumstances' cannot be shown to exist. Juridically, if there is such a rule, it must draw its legal force from other factors than the existence of these advantages, important though they may be. It should also be noticed that the counterpart of this conclusion is no less valid, and that the practical advantages of the equidistance method would continue to exist whether its employment were obligatory or not.

24. It would however be ignoring realities if it were not noted at the same time that the use of this method, partly for the reasons given in paragraph 8 above and partly for reasons that are best appreciated by reference to the many maps and diagrams furnished by both sides in the course of the written and oral proceedings, can under certain circumstances produce results that appear on the face of them to be extraordinary, unnatural or unreasonable. It is basically this fact which underlies *24 the present proceedings. The plea that, however this may be, the results can never be inequitable, because the equidistance principle is by definition an equitable principle of delimitation, involves a postulate that clearly begs the whole question at issue.

***

25. The Court now turns to the legal position regarding the equidistance method. The first question to be considered is whether the 1958 Geneva Convention on the Continental Shelf is binding for all the Parties in this case-that is to say whether, as contended by Denmark and the Netherlands, the use of this method is rendered obligatory for the present delimitations by virtue of the delimitations provision (Article 6) of that instrument, according to the conditions laid down in it. Clearly, if this is so, then the provisions of the Convention will prevail in the relations between the Parties, and would take precedence of any rules having a more general character, or derived from another source. On that basis the Court's reply to the question put to it in the Special Agreements would necessarily be to the effect that as between the Parties the relevant provisions of the Convention represented the applicable rules of law-that is to say constituted the law for the Parties-and its sole remaining task would be to interpret those provisions, in so far as their meaning was disputed or appeared to be uncertain, and to apply them to the particular circumstances involved.

26. The relevant provisions of Article 6 of the Geneva Convention, paragraph 2 of which Denmark and the Netherlands contend not only to be applicable as a conventional rule, but also to represent the accepted rule of general international law on the subject of continental shelf delimitation, as it exists independently of the Convention, read as follows:

'1. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining 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 median line, every point of which is equidistant from the nearest point 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 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 shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.'

*25 The Convention received 46 signatures and, up-to-date, there have been 39 ratifications or accessions. It came into force on 10 June 1964, having received the 22 ratifications or accessions required for that purpose (Article 11), and was therefore in force at the time when the various delimitations of continental shelf boundaries described earlier (paragraphs 1 and 5) took place between the Parties. But, under the formal provisions of the Convention, it is in force for any individual State only in so far as, having signed it within the time-limit provided for that purpose, that State has also subsequently ratified it; or, not having signed within that time-limit, has subsequently acceded to the Convention. Denmark and the Netherlands have both signed and ratified the Convention, and are parties to it, the former since 10 June 1964, the latter since 20 March 1966. The Federal Republic was one of the signatories of the Convention, but has never ratified it, and is consequently not a party.

27. It is admitted on behalf of Denmark and the Netherlands that in these circumstances the Convention cannot, as such, be binding on the Federal Republic, in the sense of the Republic being contractually bound by it. But it is contended that the Convention, or the regime of the Convention, and in particular of Article 6, has become binding on the Federal Republic in another way,-namely because, by conduct, by public statements and proclamations, and in other ways, the Republic has unilaterally assumed the obligations of the Convention; or has manifested its acceptance of the conventional regime; or has recognized it as being generally applicable to the delimitation of continental shelf areas. It has also been suggested that the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a manner as to cause other States, and in particular Denmark and the Netherlands, to rely on the attitude thus taken up.

28. As regards these contentions, it is clear that only a very definite, very consistent course of conduct on the part of a state in the situation of the Federal Republic could justify the Court in upholding them; and, if this had existed-that is to say if there had been a real intention to manifest acceptance or recognition of the applicability of the conventional regime-then it must be asked why it was that the Federal Republic did not take the obvious step of giving expression to this readiness by simply ratifying the Convention. In principle, when a number of States, including the one whose conduct is invoked, and those invoking it, have drawn up a convention specifically providing for a particular method by which the intention to become bound by the regime of the convention is to be manifested-namely by the carrying out of certain prescribed formalities (ratification, accession), it is not lightly to be presumed that a State which has not carried out these formalities, though at all times fully able and entitled to do so, has nevertheless somehow become bound in another way. Indeed if it were a question not of obligation but of rights,-if, that is to say, a State which, though entitled *26 to do so, had not ratified or acceded, attempted to claim rights under the convention, on the basis of a declared willingness to be bound by it, or of conduct evincing acceptance of the conventional regime, it would simply be told that, not having become a party to the convention it could not claim any rights under it until the professed willingness and acceptance had been manifested in the prescribed form.

29. A further point, not in itself conclusive, but to be noted, is that if the Federal Republic had ratified the Geneva Convention, it could have entered-and could, if it ratified now, enter-a reservation to Article 6, by reason of the faculty to do so conferred by Article 12 of the Convention. This faculty would remain, whatever the previous conduct of the Federal Republic might have been-a fact which at least adds to the difficulties involved by the Danish-Netherlands contention.

30. Having regard to these considerations of principle, it appears to the Court that only the existence of a situation of estoppel could suffice to lend substance to this contention,-that is to say if the Federal Republic were now precluded from denying the applicability of the conventional regime, by reason of past conduct, declarations, etc., which not only clearly and consistently evinced acceptance of that regime, but also had caused Denmark or the Netherlands, in reliance on such conduct, detrimentally to change position or suffer some prejudice. Of this there is no evidence whatever in the present case.

31. In these circumstances it seems to the Court that little useful purpose would be served by passing in review and subjecting to detailed scrutiny the various acts relied on by Denmark and the Netherlands as being indicative of the Federal Republic's acceptance of the regime of Article 6;-for instance that at the Geneva Conference the Federal Republic did not take formal objection to Article 6 and eventually signed the Convention without entering any reservation in respect of that provision; that it at one time announced its intention to ratify the Convention; that in its public declarations concerning its continental shelf rights it appeared to rely on, or at least cited, certain provisions of the Geneva Convention. In this last connection a good deal has been made of the joint Minute signed in Bonn, on 4 August 1964, between the then-negotiating delegations of the Federal Republic and the Netherlands. But this minute made it clear that what the Federal Republic was seeking was an agreed division, rather than a delimitation of the central North Sea continental shelf areas, and the reference it made to Article 6 was specifically to the first sentence of paragraphs 1 and 2 of that Article, which speaks exclusively of delimitation by agreement and not at all of the use of the equidistance method.

32. In the result it appears to the Court that none of the elements invoked is decisive; each is ultimately negative or inconclusive; all are capable of varying interpretations or explanations. It would be one *27 thing to infer from the declarations of the Federal Republic an admission accepting the fundamental concept of conastal State rights in respect of the continental shelf: it would be quite another matter to see in this an acceptance of the rules of delimitation contained in the Convention. The declarations of the Federal Republic, taken in the aggregate, might at most justify the view that to begin with, and before becoming fully aware of what the probable effects in the North Sea would be, the Federal Republic was not specifically opposed to the equidistance principle as embodied in Article 6 of the Convention. But from a purely negative conclusion such as this, it would certainly not be possible to draw the positive inference that the Federal Republic, though not a party to the Convention, had accepted the regime of Article 6 in a manner binding upon itself.

33. The dangers of the doctrine here advanced by Denmark and the Netherlands, if it had to be given general application in the international law field, hardly need stressing. Moreover, in the present case, any such inference would immediately be nullified by the fact that, as soon as concrete delimitations of North Sea continental shelf areas began to be carried out, the Federal Republic, as described earlier (paragraphs 9 and 12), at once reserved its position with regard to those delimitations which (effected on an equidistance basis) might be prejudicial to the delimitation of its own continental shelf areas.

34. Since, accordingly, the foregoing considerations must lead the Court to hold that Article 6 of the Geneva Convention is not, as such, applicable to the delimitations involved in the present proceedings, it becomes unnecessary for it to go into certain questions relating to the interpretation or application of that provision which would otherwise arise. One should be mentioned however, namely what is the relationship between the requirement of Article 6 for delimitation by agreement, and the requirements relating to equidistance and special circumstances that are to be applied in 'the absence of' such agreement,-i.e., in the absence of agreement on the matter, is there a presumption that the continental shelf boundary between any two adjacent States consists automatically of an equidistance line,-or must negotiations for an agreed boundary prove finally abortive before the acceptance of a boundary drawn on an equidistance basis becomes obligatory in terms of Article 6, if no special circumstances exist?

35. Without attempting to resolve this question, the determination of which is not necessary for the purposes of the present case, the Court draws attention to the fact that the delimitation of the line E-F, as shown on Map 3, which was affected by Denmark and the Netherlands under the agreement of 31 March 1966 already mentioned (paragraphs 5 and 9), to which the Federal Republic was not a party, must have been based on *28 the tacit assumption that, no agreement to the contrary having been reached in the negotiations between the Federal Republic and Denmark and the Netherlands respectively (paragraph 7), the boundary between the continental shelf areas of the Republic and those of the other two countries must be deemed to be an equidistance one;-or in other words the delimitation of the line E-F, and its validity erga omnes including the Federal Republic, as contended for by Denmark and the Netherlands, presupposes both the delimitation and the validity on an equidistance basis, of the lines B-E and D-E on Map 3, considered by Denmark and the Netherlands to represent the boundaries between their continental shelf areas and those of the Federal Republic.

36. Since, however, Article 6 of the Geneva Convention provides only for delimitation between 'adjacent' States, which Denmark and the Netherlands clearly are not, or between 'opposite' States which, despite suggestions to the contrary, the Court thinks they equally are not, the delimitation of the line E-F on Map 3 could not in any case find its validity in Article 6, even if that provision were opposable to the Federal Republic. The vaiidity of this delimitation must therefore be sought in some other source of law. It is a main contention of Denmark and the Netherlands that there does in fact exist such another source, furnishing a rule that validates not only this particular delimitation, but all delimitations effected on an equidistance basis,-and indeed requiring delimitation on that basis unless the States concerned otherwise agree, and whether or not the Geneva Convention is applicable. This contention must now be examined.

***

37. It is maintained by Denmark and the Netherlands that the Federal Republic, whatever its position may be in relation to the Geneva Convention, considered as such, is in any event bound to accept delimitation on an equidistance- special circumstances basis, because the use of this method is not in the nature of a merely conventional obligation, but is, or must now be regarded as involving, a rule that is part of the corpus of general international law;-and, like other rules of general or customary international law, is binding on the Federal Republic automatically and independently of any specific assent, direct or indirect, given by the latter. This contention has both a positive law and a more fundamentalist aspect. As a matter of positive law, it is based on the work done in this field by international legal bodies, on State practice and on the influence attributed to the Geneva Convention itself,-the claim being that these various factors have cumulatively evidenced or been creative of the opinion juris sive necessitatis, requisite for the formation of new rules of customary international law. In its fundamentalist aspect, the view put forward derives from what might be called the natural law of the continental *29 shelf, in the sense that the equidistance principle is seen as a necessary expression in the field of delimitation of the accepted doctrine of the exclusive appurtenance of the continental shelf to the nearby coastal State, and therefore as having an a priori character of so to speak juristic inevitability.

38. The Court will begin by examining this latter aspect, both because it is the more fundamental, and was so presented on behalf of Denmark and the Netherlands-i.e., as something governing the whole case; and because, if it is correct that the equidistance principle is, as the point was put in the course of the argument, to be regarded as inherent in the whole basic concept of continental shelf rights, then equidistance should constitute the rule according to positive law tests also. On the other hand, if equidistance should not possess any a priori character of necessity or inherency, this would not be any bar to its having become a rule of positive law through influences such as those of the Geneva Convention and State practice,-and that aspect of the matter would remain for later examination.

39. The a priori argument starts from the position described in paragraph 19, according to which the right of the coastal State to its continental shelf areas is based on its sovereignty over the land domain, of which the shelf area is the natural prolongation into and under the sea. From this notion of appurtenance is derived the view which, as has already been indicated, the Court accepts, that the coastal State's rights exist ipso facto and ab initio without there being any question of having to make good a claim to the areas concerned, or of any apportionment of the continental shelf between different States. This was one reason why the Court felt bound to reject the claim of the Federal Republic (in the particular form which it took) to be awarded a 'just and equitable share' of the shelf areas involved in the present proceedings. Denmark and the Netherlands, for their part, claim that the test of appurtenance must be 'proximity', or more accurately 'closer proximity': all those parts of the shelf being considered as appurtenant to a particular coastal State which are (but only if they are) closer to it than they are to any point on the coast of another State. Hence delimitation must be effected by a method which will leave to each one of the States concerned all those areas that are nearest to its own coast. Only a line drawn on equidistance principles will do this. Therefore, it is contended, only such a line can be valid (unless the Parties, for reasons of their own, agree on another), because only such a line can be thus consistent with basic continental shelf doctrine.

40. This view clearly has much force; for there can be no doubt that as a matter of normal topography, the greater part of a State's continental *30 shelf areas will in fact, and without the necessity for any delimitation at all, be nearer to its coasts than to any other. It could not well be otherwise; but post hoc is not propter hoc, and this situation may only serve to obscure the real issue, which is whether it follows that every part of the area concerned must be placed in this way, and that it should be as it were prohibited that any part should not be so placed. The Court does not consider that it does follow, either from the notion of proximity itself, or from the more fundamental concept of the continental shelf as being the natural prolongation of the land domain-a concept repeatedly appealed to by both sides throughout the case, although quite differently interpreted by them.

41. As regards the notion of proximity, the idea of absolute proximity is certainly not implied by the rather vague and general terminology employed in the literature of the subject, and in most State proclamations and international conventions and other instruments-terms such as 'near', 'close to its shores', 'off its coast', 'opposite', 'in front of the coast', 'in the vicinity of', 'neighbouring the coast', 'adjacent to', 'contiguous', etc.,-all of them terms of a somewhat imprecise character which, although they convey a reasonably clear general idea, are capable of a considerable fluidity of meaning. To take what is perhaps the most frequently employed of these terms, namely 'adjacent to', it is evident that by no stretch of imagination can a point on the continental shelf situated say a hundred miles, or even much less, from a given coast, be regarded as 'adjacent' to it, or to any coast at all, in the normal sense of adjacency, even if the point concerned is nearer to some one coast than to any other. This would be even truer of localities where, physically, the continental shelf begins to merge with the ocean depths. Equally, a point inshore situated near the meeting place of the coasts of two States can often properly be said to be adjacent to both coasts, even though it may be fractionally closer to the one than the other. Indeed, local geographical configuration may sometimes cause it to have a closer physical connection with the coast to which it is not in fact closest.

42. There seems in comequence to be no necessary, and certainly no complete, identity between the notions of adjacency and proximity; and therefore the question of which parts of the continental shelf 'adjacent to' a coastline bordering more than one State fall within the appurtenance of which of them, remains to this extent an open one, not to be determined on a basis exclusively of proximity. Even if proximity may afford one of the tests to be applied and an important one in the right conditions, it may not necessarily be the only, nor in all circumstances, the most appropriate one. Hence it would seem that the notion of adjacency, so constantly employed in continental shelf doctrine from the start, only implies proximity in a general sense, and does not imply any fundamental or inherent rule the ultimate effect of which would be to *31 prohibit any State (otherwise than by agreement) from exercising continental shelf rights in respect of areas closer to the coast of another State.

43. More fundamental than the notion of proximity appears to be the principle- constantly relied upon by all the Parties-of the natural prolongation or continuation of the land territory or domain, or land sovereignty of the coastal State, into and under the high seas, via the bed of its territorial sea which is under the full sovereignty of that State. There are various ways of formulating this principle, but the underlying idea, namely of an extension of something already possessed, is the same, and it is this idea of extension which is, in the Court's opinion, determinant. Submarine areas do not really appertain to the coastal State because-or not only because-they are near it. They are near it of course; but this would not suffice to confer title, any more than, according to a well-established principle of law recognized by both sides in the present case, mere proximity confers per se title to land territory. What confers the ipso jure title which international law attributes to the coastal State in respect of its continental shelf, is the fact that the submarine areas concerned may be deemed to be actually part of the territory over which the coastal State already has dominion,-in the sense that, although covered with water, they are a prolongation or continuation of that territory, an extension of it under the sea. From this it would follow that whenever a given submarine area does not constitute a natural-or the most natural- extension of the land territory of a coastal State, even though that area may be closer to it than it is to the territory of any other State, it cannot be regarded as appertaining to that State;-or at least it cannot be so regarded in the face of a competing claim by a State of whose land territory the submarine area concerned is to be regarded as a natural extension, even if it is less close to it.

44. In the present case, although both sides relied on the prolongation principle and regarded it as fundamental, they interpreted it quite differently. Both interpretations appear to the Court to be incorrect. Denmark and the Netherlands identified natural prolongation with closest proximity and therefrom argued that it called for an equidistance line: the Federal Republic seemed to think it implied the notion of the just and equitable share, although the connection is distinctly remote. (The Federal Republic did however invoke another idea, namely that of the proportionality of a State's continental shelf area to the length of its coastline, which obviously does have an intimate connection with the prolongation principle, and will be considered in its place.) As regards equidistance, it clearly cannot be identified with the notion of natural prolongation or extension, since, as has already been stated (paragraph 8), the use of the equidistance method would frequently cause areas which are the natural prolongation or extension of the territory of one State to be attributed to another, when the configuration of the latter's coast makes the equidistance line swing out laterally across the former's *32 coastal front, cutting it off from areas situated directly before that front .

45. The fluidity of all these notions is well illustrated by the case of the Norwegian Trough (paragraph 4 above). Without attempting to pronounce on the status of that feature, the Court notes that the shelf areas in the North Sea separated from the Norwegian coast by the 80-100 kilometres of the Trough cannot in any physical sense be said to be adjacent to it, nor to be its natural prolongation. They are nevertheless considered by the States parties to the relevant delimitations, as described in paragraph 4, to appertain to Norway up to the median lines shown on Map 1. True these median lines are themselves drawn on equidistance principles; but it was only by first ignoring the existence of the Trough that these median lines fell to be drawn at all.

46. The conclusion drawn by the Court from the foregoing analysis is that the notion of equidistance as being logically necessary, in the sense of being an inescapable a priori accompaniment of basic continental shelf doctrine, is incorrect. It is said not to be possible to maintain that there is a rule of law ascribing certain areas to a State as a matter of inherent and original right (see paragraphs 19 and 20), without also admitting the existence of some rule by which those areas can be obligatorily delimited. The Court cannot accept the logic of this view. The problem arises only where there is a dispute and only in respect of the marginal areas involved. The appurtenance of a given area, considered as an entity, in no way governs the precise delimitation of its boundaries, any more than uncertainty as to boundaries can affect territorial rights. There is for instance no rule that the land frontiers of a State must be fully delimited and defined, and often in various places and for long periods they are not, as is shown by the case of the entry of Albania into the League of Nations (Monastery of Saint Naoum, Advisory Opinion, 1924, P.C.I.J., Series B, No. 9, at p. 10).

***

47. A review of the genesis and development of the equidistance method of delimitation can only serve to confirm the foregoing conclusion. Such a review may appropriately start with the instrument, generally known as the 'Truman Proclamation', issued by the Government of the United States on 28 September 1945. Although this instrument was not the first or only one to have appeared, it has in the opinion of the Court a special status. Previously, various theories as to the nature and extent of the rights relative to or exercisable over the continental shelf had been advanced by jurists, publicists and technicians. The Truman Proclamation however, soon came to be regarded as the starting point of the positive *33 law on the subject, and the chief doctrine it enunciated, namely that of the coastal State as having an original, natural, and exclusive (in short a vested) right to the continental shelf off its shores, came to prevail over all others, being now reflected in Article 2 of the 1958 Geneva Convention on the Continental Shelf. With regard to the delimitation of lateral boundaries between the continental shelves of adjacent States, a matter which had given rise to some consideration on the technical, but very little on the juristic level, the Truman Proclamation stated that such boundaries 'shall be determined by the United States and the State concerned in accordance with equitable principles'. These two concepts, of delimitation by mutual agreement and delimitation in accordance with equitable principles, have underlain all the subsequent history of the subject. They were reflected in various other State proclamations of the period, and after, and in the later work on the subject.

48. It was in the International Law Commission of the United Nations that the question of delimitation as between adjacent States was first taken up seriously as part of a general jurisdical project; for outside the ranks of the hydrographers and cartographers, questions of delimitation were not much thought about in earlier continental shelf doctrine. Juridical interest and speculation was focussed mainly on such questions as what was the legal basis on which any rights at all in respect of the continental shelf could be claimed, and what was the nature of those rights. As regards boundaries, the main issue was not that of boundaries between States but of the seaward limit of the area in respect of which the coastal State could claim exclusive rights of exploitation. As was pointed out in the course of the written proceedings, States in most cases had not found it necessary to conclude treaties or legislate about their lateral sea boundaries with adjacent States before the question of exploiting the natural resources of the seabed and subsoil arose;- practice was therefore sparse.

49. In the records of the International Law Commission, which had the matter under consideration from 1950 to 1956, there is no indication at all that any of its members supposed that it was incumbent on the Commission to adopt a rule of equidistance because this gave expression to, and translated into linear terms, a principle of proximity inherent in the basic concept of the continental shelf, causing every part of the shelf to appertain to the nearest coastal State and to no other, and because such a rule must therefore be mandatory as a matter of customary international law. Such an idea does not seem ever to have been propounded. Had it been, and had it had the self- evident character contended for by Denmark and the Netherlands, the Commission would have had no alternative but to adopt it, and its long continued hesitations over this matter would be incomprehensible.

*34 50. It is moreover, in the present context, a striking feature of the Commission's discussions that during the early and middle stages, not only was the notion of equidistance never considered from the standpoint of its having a priori a character of inherent necessity: it was never given any special prominence at all, and certainly no priority. The Commission discussed various other possibilities as having equal if not superior status such as delimitation by agreement, by reference to arbitration, by drawing lines perpendicular to the coast, by prolonging the dividing line of adjacent territorial waters (the principle of which was itself not as yet settled), and on occasion the Commission seriously considered adopting one or other of these solutions. It was not in fact until after the matter had been referred to a committee of hydrographical experts, which reported in 1953, that the equidistance principle began to take precedence over other possibilities: the Report of the Commission for that year (its principal report on the topic of delimitation as such) makes it clear that before this reference to the experts the Commission had felt unable to formulate any definite rule at all, the previous trend of opinion having been mainly in favour of delimitation by agreement or by reference to arbitration.

51. It was largely because of these difficulties that it was decided to consult the Committee of Experts. It is therefore instructive in the context (i.e., of an alleged inherent necessity for the equidistance principle) to see on what basis the matter was put to the experts, and how they dealt with it. Equidistance was in fact only one of four methods suggested to them, the other three being the continuation in the seaward direction of the land frontier between the two adjacent States concerned; the drawing of a perpendicular to the coast at the point of its intersection with this land frontier; and the drawing of a line perpendicular to the line of the 'general direction' of the coast. Furthermore the matter was not even put to the experts directly as a question of continental shelf delimitation, but in the context of the delimitation of the lateral boundary between adjacent territorial waters, no account being taken of the possibility that the situation respecting territorial waters might be different.

52. The Committee of Experts simply reported that after a thorough discussion of the different methods-(there are no official records of this discussion)- they had 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'. They added, however, significantly, that in 'a number of cases this may not lead to an equitable solution, which should be then arrived at by negotiation'. Only after that did they add, as a rider to this conclusion, that they had considered it 'important to find a formula for drawing the international boundaries in the territorial waters of States, which could also be used for the delimitation of the respective continental shelves of two States bordering the same continental shelf'.

*35 53. In this almost impromptu, and certainly contingent manner was the principle of equidistance for the delimitation of continental shelf boundaries propounded. It is clear from the Report of the Commission for 1953 already referred to (paragraph 50) that the latter adopted it largely on the basis of the recommendation of the Committee of Experts, and even so in a text that gave priority to delimitation by agreement and also introduced an exception in favour of 'special circumstances' which the Committee had not formally proposed. The Court moreover thinks it to be a legitimate supposition that the experts were actuated by considerations not of legal theory but of practical convenience and cartography of the kind mentioned in paragraph 22 above. Although there are no official records of their discussions, there is warrant for this view in correspondence passing between certain of them and the Commission's Special Rapporteur on the subject, which was deposited by one of the Parties during the oral hearing at the request of the Court. Nor, even after this, when a decision in principle had been taken in favour of an equidistance rule, was there an end to the Commission's hesitations, for as late as three years after the adoption of the report of the Committee of Experts, when the Commission was finalizing the whole complex of drafts comprised under the topic of the Law of the Sea, various doubts about the equidistance principle were still being voiced in the Commission, on such grounds for instance as that its strict application would be open, in certain cases, to the objection that the geographical configuration of the coast would render a boundary drawn on this basis inequitable.

54. A further point of some significance is that neither in the Committee of Experts, nor in the Commission itself, nor subsequently at the Geneva Conference, does there appear to have been any discussion of delimitation in the context, not merely of two adjacent States, but of three or more States on the same coast, or in the same vicinity,-from which it can reasonably be inferred that the possible resulting situations, some of which have been described in paragraph 8 above, were never really envisaged or taken into account. This view finds some confirmation in the fact that the relevant part of paragraph 2 of Article 6 of the Geneva Convention speaks of delimiting the continental shelf of 'two' adjacent States (although a reference simply to 'adjacent States' would have sufficed), whereas in respect of median lines the reference in paragraph 1 of that Article is to 'two or more' opposite States.

55. In the light of this history, and of the record generally, it is clear that at no time was the notion of equidistance as an inherent necessity of continental shelf doctrine entertained. Quite a different outlook was indeed manifested from the start in current legal thinking. It was, and *36 it really remained to the end, governed by two beliefs;-namely, first, that no one single method of delimitation was likely to prove satisfactory in all circumstances, and that delimitation should, therefore, be carried out by agreement (or by reference to arbitration); and secondly, that it should be effected on equitable principles. It was in pursuance of the first of these beliefs that in the draft that emerged as Article 6 of the Geneva Convention, the Commission gave priority to delimitation by agreement,-and in pursuance of the second that it introduced the exception in favour of 'special circumstances'. Yet the record shows that, even with these mitigations, doubts persisted, particularly as to whether the equidistance principle would in all cases prove equitable.

56. In these circumstances, it seems to the Court that the inherency contention as now put forward by Denmark and the Netherlands inverts the true order of things in point of time and that, so far from an equidistance rule having been generated by an antecedent principle of proximity inherent in the whole concept of continental shelf appurtenance, the latter is rather a rationalization of the former-an ex post facto constract directed to providing a logical juristic basis for a method of delimitation propounded largely for different reasons, cartographical and other. Given also that for the reasons already set out (paragraphs 40-46) the theory cannot be said to be endowed with any quality of logical necessity either, the Court is unable to accept it.

57. Before going further it will be convenient to deal briefly with two subsidiary matters. Most of the difficulties felt in the International Law Commission related, as here, to the case of the lateral boundary between adjacent States. Less difficulty was felt over that of the median line boundary between opposite States, although it too is an equidistance line. For this there seems to the Court to be good reason. The continental shelf area off, and dividing, opposite States, can be claimed by each of them to be a natural prolongation of its territory. These prolongations meet and overlap, and can therefore only be delimited by means of a median line; and, ignoring the presence of islets, rocks and minor coastal projections, the disproportionally distorting effect of which can be eliminated by other means, such a line must effect an equal division of the particular area involved. If there is a third State on one of the coasts concerned, the area of mutual natural prolongation with that of the same or another opposite State will be a separate and distinct one, to be treated in the same way. This type of case is therefore different from that of laterally adjacent States on the same coast with no immediately opposite coast in front of it, and does not give rise to the same kind of problem-a conclusion which also finds some confirmation in the difference *37 of language to be observed in the two paragraphs of Article 6 of the Geneva Convention (reproduced in paragraph 26 above) as respects recourse in the one case to median lines and in the other to lateral equidistance lines, in the event of absence of agreement.

58. If on the other hand, contrary to the view expressed in the preceding paragraph, it were correct to say that there is no essential difference in the process of delimiting the continental shelf areas between opposite States and that of delimitations between adjacent States, then the results ought in principle to be the same or at least comparable. But in fact, whereas a median line divides equally between the two opposite countries areas that can be regarded as being the natural prolongation of the territory of each of them, a lateral equidistance line often leaves to one of the States concerned areas that are a natural prolongation of the territory of the other.

59. Equally distinct in the opinion of the Court is the case of the lateral boundary between adjacent territorial waters to be drawn on an equidistance basis. As was convincingly demonstrated in the maps and diagrams furnished by the Parties, and as has been noted in paragraph 8, the distorting effects of lateral equidistance lines under certain conditions of coastal configuration are nevertheless comparatively small within the limits of territorial waters, but produce their maximum effect in the localities where the main continental shelf areas lie further out. There is also a direct correlation between the notion of closest proximity to the coast and the sovereign jurisdiction which the coastal State is entitled to exercise and must exercise, not only over the seabed underneath the territorial waters but over the waters themselves, which does not exist in respect of continental shelf areas where there is no jurisdiction over the superjacent waters, and over the seabed only for purposes of exploration and exploitation.

***

60. The conclusions so far reached leave open, and still to be considered, the question whether on some basis other than that of an a priori logical necessity, i.e., through positive law processes, the equidistance principle has come to be regarded as a rule of customary international law, so that it would be obligatory for the Federal Republic in that way, even though Article 6 of the Geneva Convention is not, as such, opposable to it. For this purpose it is necessary to examine the status of the principle as it stood when the Convention was drawn up, as it resulted from the effect of the Convention, and in the light of State practice subsequent to the Convention; but it should be clearly understood that in the pronouncements the Court makes on these matters it has in view solely the delimitation provisions (Article 6) of the Convention, not other parts of it, nor the Convention as such.

*38 61. The first of these questions can conveniently be considered in the form suggested on behalf of Denmark and the Netherlands themselves in the course of the oral hearing, when it was stated that they had not in fact contended that the delimitation article (Article 6) of the Convention 'embodied already received rules of customary law in the sense that the Convention was merely declaratory of existing rules'. Their contention was, rather, that although prior to the Conference, continental shelf law was only in the formative stage, and State practice lacked uniformity, yet 'the process of the definition and consolidation of the emerging customary law took place through the work of the International Law Commission, the reaction of governments to that work and the proceedings of the Geneva Conference'; and this emerging customary law became 'crystallized in the adoption of the Continental Shelf Convention by the Conference'.

62. Whatever validity this contention may have in respect of at least certain parts of the Convention, the Court cannot accept it as regards the delimitation provision (Article 6), the relevant parts of which were adopted almost unchanged from the draft of the International Law Commission that formed the basis of discussion at the Conference. The status of the rule in the Convention therefore depends mainly on the processes that led the Commission to propose it. These processes have already been reviewed in connection with the Danish-Netherlands contention of an a priori necessity for equidistance, and the Court considers this review sufficient for present purposes also, in order to show that the principle of equidistance, as it now figures in Article 6 of the Convention, was proposed by the Commission with considerable hesitation, somewhat on an experimental basis, at most de lege ferenda, and not at all de lege lata or a an emerging rule of customary international law. This is clearly not the sort of foundation on which Article 6 of the Convention could be said to have reflected or crystallized such a rule.

63. The foregoing conclusion receives significant confirmation from the fact that Article 6 is one of those in respect of which, under the reservations article of the Convention (Article 12) reservations may be made by any State on signing, ratifying or acceding,-for, speaking generally, it is a characteristic of purely conventional rules and obligations that, in regard to them, some faculty of making unilateral reservations may, within certain limits, be admitted;-whereas this cannot be so in the case of general or customary law rules and obligations which, by their very nature, must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own *39 favour. Consequently, it is to be expected that when, for whatever reason, rules or obligations of this order are embodied, or are intended to be reflected in certain provisions of a convention, such provisions will figure amongst those in respect of which a right of unilateral reservation is not conferred, or is excluded. This expectation is, in principle, fulfilled by Article 12 of the Geneva Continental Shelf Convention, which permits reservations to be made to all the articles of the Convention 'other than to Articles 1 to 3 inclusive'-these three Articles being the ones which, it is clear, were then regarded as reflecting, or as crystallizing, received or at least emergent rules of customary international law relative to the continental shelf, amongst them the question of the seaward extent of the shelf; the jurisdical character of the coastal State's entitlement; the nature of the rights exercisable; the kind of natural resources to which there relate; and the preservation intact of the legal status as high seas of the waters over the shelf, and the legal status of the superjacent air-space.

64. The normal inference would therefore be that any articles that do not figure among those excluded from the faculty of reservation under Article 12, were not regarded as declaratory of previously existing or emergent rules of law; and this is the inference the Court in fact draws in respect of Article 6 (delimitation), having regard also to the attitude of the International Law Commission to this provision, as already described in general terms. Naturally this would not of itself prevent this provision from eventually passing into the general corpus of customary international law by one of the processes considered in paragraphs 70-81 below. But that is not here the issue. What is now under consideration is whether it originally figured in the Convention as such a rule.

65. It has however been suggested that the inference drawn at the beginning of the proceding paragraph is not necessarily warranted, seeing that there are certain other provisions of the Convention, also not excluded from the faculty of reservation, but which do undoubtedly in principle relate to matters that lie within the field of received customary law, such as the obligation not to impede the laying or maintenance of submarine cables or pipelines on the continental shelf seabed (Article 4), and the general obligation not unjustifiably to interfere with freedom of navigation, fishing, and so on (Article 5, paragraphs 1 and 6). These matters however, all relate to or are consequential upon principles or rules of general maritime law, very considerably ante-dating the Convention, and not directly connected with but only incidental to continental shelf rights as such. They were mentioned in the Convention, not in order to declare or confirm their existence, which was not necessary, but simply to ensure that they were not prejudiced by the exercise of continental shelf rights as provided for in the Convention. Another method of *40 drafting might have clarified the point, but this cannot alter the fact that no reservation could release the reserving party from obligations of general maritime law existing outside and independently of the Convention, and especially obligations formalized in Article 2 of the contemporaneous Convention on the High Seas, expressed by its preamble to be declaratory of established principles of international law.

66. Article 6 (delimitation) appears to the Court to be in a different position. It does directly relate to continental shelf rights as such, rather than to matters incidental to these; and since it was not, as were Articles 1 to 3, excluded from the faculty of reservation, it is a legitimate inference that it was considered to have a different and less fundamental status and not, like those Articles, to reflect pre-existing or emergent customary law. It was however contended on behalf of Denmark and the Netherlands that the right of reservation given in respect of Article 6 was not intended to be an unfettered right, and that in particular it does not extend to effecting a total exclusion of the equidistance principle of delimitation,-for, so it was claimed, delimitation on the basis of that principle is implicit in Articles 1 and 2 of the Convention, in respect of which no reservations are permitted. Hence the right of reservation under Article 6 could only be exercised in a manner consistent with the preservation of at least the basic principle of equidistance. In this connection it was pointed out that, of the no more than four reservations so far entered in respect of Article 6, one at least of which was somewhat farreaching, none has purported to effect such a total exclusion or denial.

67. The Court finds this argument unconvincing for a number of reasons. In the first place, Articles 1 and 2 of the Geneva Convention do not appear to have any direct connection with inter-State delimitation as such. Article 1 is concerned only with the outer, seaward, limit of the shelf generally, not with boundaries between the shelf areas of opposite or adjacent States. Article 2 is equally not concerned with such boundaries. The suggestion seems to be that the notion of equidistance is implicit in the reference in paragraph 2 of Article 2 to the rights of the coastal State over its continental shelf being 'exclusive'. So far as actual language is concerned this interpretation is clearly incorrect. The true sense of the passage is that in whatever areas of the continental shelf a coastal State has rights, those rights are exclusive rights, not exercisable by any other State. But this says nothing as to what in fact are the precise areas in respect of which each coastal State possesses these exclusive rights. This question, which can arise only as regards the fringes of a coastal State's shelf area is, as explained at the end of paragraph 20 above, exactly what falls to be settled through the process of delimitation, and this is the sphere of Article 6, not Article 2.

*41 68. Secondly, it must be observed that no valid conclusions can be drawn from the fact that the faculty of entering reservations to Article 6 has been exercised only sparingly and within certain limits. This is the affair exclusively of those States which have not wished to exercise the faculty, or which have been content to do so only to a limited extent. Their action or inaction cannot affect the right of other States to enter reservations to whatever is the legitimate extent of the right.

69. In the light of these various considerations, the Court reaches the conclusion that the Geneva Convention did not embody or crystallize any pre- existing or emergent rule of customary law, according to which the delimitation of continental shelf areas between adjacent States must, unless the Parties otherwise agree, be carried out on an equidistance-special circumstances basis. A rule was of course embodied in Article 6 of the Convention, but as a purely conventional rule. Whether it has since acquired a broader basis remains to be seen: qua conventional rule however, as has already been concluded, it is not opposable to the Federal Republic.

***

70. The Court must now proceed to the last stage in the argument put forward on behalf of Denmark and the Netherlands. This is to the effect that even if there was at the date of the Geneva Convention no rule of customary international law in favour of the equidistance principle, and no such rule was crystallized in Article 6 of the Convention, nevertheless such a rule has come into being since the Convention, partly because of its own impact, partly on the basis of subsequent State practice,-and that this rule, being now a rule of customary international law binding on all States, including therefore the Federal Republic, should be declared applicable to the delimitation of the boundaries between the Parties' respective continental shelf areas in the North Sea.

71. In so far as this contention is based on the view that Article 6 of the Convention has had the influence, and has produced the effect, described, it clearly involves treating that Article as a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention. There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed. At the same time this result is not lightly to be regarded as having been attained.

72. It would in the first place be necessary that the provision concerned *42 should, at all events potentially, be of a fundamentally normcreating character such as could be regarded as forming the basis of a general rule of law. Considered in abstracto the equidistance principle might be said to fulfil this requirement. Yet in the particular form in which it is embodied in Article 6 of the Geneva Convention, and having regard to the relationship of that Article to other provisions of the Convention, this must be open to some doubt. In the first place, Article 6 is so framed as to put second the obligation to make use of the equidistance method, causing it to come after a primary obligation to effect delimitation by agreement. Such a primary obligation constitutes an unusual preface to what is claimed to be a potential general rule of law. Without attempting to enter into, still less pronounce upon any question of jus cogens, it is well understood that, in practice, rules of international law can, by agreement, be derogated from in particular cases, or as between particular parties,-but this is not normally the subject of any express provision, as it is in Article 6 of the Geneva Convention. Secondly the part played by the notion of special circumstances relative to the principle of equidistance as embodied in Article 6, and the very considerable, still unresolved controversies as to the exact meaning and scope of this notion, must raise further doubts as to the potentially norm- creating character of the rule. Finally, the faculty of making reservations to Article 6, while it might not of itself prevent the equidistance principle being eventually received as general law, does add considerably to the difficulty of regarding this result as having been brought about (or being potentially possible) on the basis of the Convention: for so long as this faculty continues to exist, and is not the subject of any revision brought about in consequence of a request made under Article 13 of the Convention-of which there is at present no official indication-it is the Convention itself which would, for the reasons already indicated, seem to deny to the provisions of Article 6 the same norm-creating character as, for instance, Articles 1 and 2 possess.

73. With respect to the other elements usually regarded as necessary before a conventional rule can be considered to have become a general rule of international law, it might be that, even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it included that of States whose interests were specially affected. In the present case however, the Court notes that, even if allowance is made for the existence of a number of States to whom participation in the Geneva Convention is not open, or which, by reason for instance of being land-locked States, would have no interest in becoming parties to it, the number of ratifications and accessions so far secured is, though respectable, hardly sufficient. That non-ratification may sometimes be due to factors other than active disapproval of the convention concerned can hardly constitute a basis on which positive acceptance of its principles can be implied: the reasons are speculative, but the facts remain.

*43 74. As regards the time element, the Court notes that it is over ten years since the Convention was signed, but that it is even now less than five since it came into force in June 1964, and that when the present proceedings were brought it was less than three years, while less than one had elapsed at the time when the respective negotiations between the Federal Republic and the other two Parties for a complete delimitation broke down on the question of the application of the equidistance principle. Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; -and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.

75. The Court must now consider whether State practice in the matter of continental shelf delimitation has, subsequent to the Geneva Convention, been of such a kind as to satisfy this requirement. Leaving aside cases which, for various reasons, the Court does not consider to be reliable guides as precedents, such as delimitations effected between the present Parties themselves, or not relating to international boundaries, some fifteen cases have been cited in the course of the present proceedings, occurring mostly since the signature of the 1958 Geneva Convention, in which continental shelf boundaries have been delimited according to the equidistance principle-in the majority of the cases by agreement, in a few others unilaterally-or else the delimitation was foreshadowed but has not yet been carried out. Amongst these fifteen are the four North Sea delimitations United Kingdom/Norway-Denmark- Netherlands, and Norway/Denmark already mentioned in paragraph 4 of this Judgment. But even if these various cases constituted more than a very small proportion of those potentially calling for delimitation in the world as a whole, the Court would not think it necessary to enumerate or evaluate them separately, since there are, a priori, several grounds which deprive them of weight as precedents in the present context.

76. To begin with, over half the States concerned, whether acting unilaterally or conjointly, were or shortly became parties to the Geneva Convention, and were therefore presumably, so far as they were concerned, acting actually or potentially in the application of the Convention. From their action no inference could legitimately be drawn as to the existence of a rule of customary international law in favour of the equidistance principle. As regards those States, on the other hand, which were not, and have not become parties to the Convention, the basis of *44 their action can only be problematical and must remain entirely speculative. Clearly, they were not applying the Convention. But from that no inference could justifiably be drawn that they believed themselves to be applying a mandatory rule of customary international law. There is not a shred of evidence that they did and, as has been seen (paragraphs 22 and 23), there is no lack of other reasons for using the equidistance method, so that acting, or agreeing to act in a certain way, does not of itself demonstrate anything of a juridical nature.

77. The essential point in this connection-and it seems necessary to stress it-is that even if these instances of action by non-parties to the Convention were much more numerous than they in fact are, they would not, even in the aggregate, suffice in themselves to constitute the opinio juris; -for, in order to achieve this result, two conditions must be fulfilled. Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.

78. In this respect the Court follows the view adopted by the Permanent Court of International Justice in the Lotus case, as stated in the following passage, the principle of which is, by analogy, applicable almost word for word, mutatis mutandis, to the present case (P.C.I.J., Series A, No. 10, 1927, at p. 28):

'Even if the rarity of the judicial decisions to be found ... were sufficient to prove ... the circumstance alleged ..., it would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged fact does not allow one to infer that States have been conscious of having such a duty; on the other hand, ... there are other circumstances calculated to show that the contrary is true.'

Applying this dictum to the present case, the position is simply that in certain cases-not a great number-the States concerned agreed to draw or did draw the boundaries concerned according to the principle of equidistance. There is no evidence that they so acted because they felt *45 legally compelled to draw them in this way by reason of a rule of customary law obliging them to do so-especially considering that they might have been motivated by other obvious factors.

79. Finally, it appears that in almost all of the cases cited, the delimitations concerned were median-line delimitations between opposite States, not lateral delimitations between adjacent States. For reasons which have already been given (paragraph 57) the Court regards the case of median-line delimitations between opposite States as different in various respects, and as being sufficiently distinct not to constitute a precedent for the delimitation of lateral boundaries. In only one situation discussed by the Parties does there appear to have been a geographical configuration which to some extent resembles the present one, in the sense that a number of States on the same coastline are grouped around a sharp curve or bend of it. No complete delimitation in this area has however yet been carried out. But the Court is not concerned to deny to this case, or any other of those cited, all evidential value in favour of the thesis of Denmark and the Netherlands. It simply considers that they are inconclusive, and insufficient to bear the weight sought to be put upon them as evidence of such a settled practice, manifested in such circumstances, as would justify the inference that delimitation according to the principle of equidistance amounts to a mandatory rule of customary international law,-more particularly where lateral delimitations are concerned.

80. There are of course plenty of cases (and a considerable number were cited) of delimitations of waters, as opposed to seabed, being carried out on the basis of equidistance-mostly of internal waters (lakes, rivers, etc.), and mostly median-line cases. The nearest analogy is that of adjacent territorial waters, but as already explained (paragraph 59) the Court does not consider this case to be analogous to that of the continental shelf.

81. The Court accordingly concludes that if the Geneva Convention was not in its origins or inception declaratory of a mandatory rule of customary international law enjoining the use of the equidistance principle for the delimitation of continental shelf areas between adjacent States, neither has its subsequent effect been constitutive of such a rule; and that State practice up-to-date has equally been insufficient for the purpose.

82. The immediately foregoing conclusion, coupled with that reached earlier (paragraph 56) to the effect that the equidistance principle could not be regarded as being a rule of law on any a priori basis of logical *46 necessity deriving from the fundamental theory of the continental shelf, leads to the final conclusion on this part of the case that the use of the equidistance method is not obligatory for the delimitation of the areas concerned in the present proceedings. In these circumstances, it becomes unnecessary for the Court to determine whether or not the configuration of the German North Sea coast constitutes a 'special circumstance' for the purposes either of Article 6 of the Geneva Convention or of any rule of customary international law,-since once the use of the equidistance method of delimitation is determined not to be obligatory in any event, it ceases to be legally necessary to prove the existence of special circumstances in order to justify not using that method.

*****

83. The legal situation therefore is that the Parties are under no obligation to apply either the 1958 Convention, which is not opposable to the Federal Republic, or the equidistance method as a mandatory rule of customary law, which it is not. But as between States faced with an issue concerning the lateral delimitation of adjacent continental shelves, there are still rules and principles of law to be applied; and in the present case it is not the fact either that rules are lacking, or that the situation is one for the unfettered appreciation of the Parties. Equally, it is not the case that if the equidistance principle is not a rule of law, there has to be as an alternative some other single equivalent rule.

84. As already indicated, the Court is not called upon itself to delimit the areas of continental shelf appertaining respectively to each Party, and in consequence is not bound to prescribe the methods to be employed for the purposes of such a delimitation. The Court has to indicate to the Parties the principles and rules of law in the light of which the methods for eventually effecting the delimitation will have to be chosen. The Court will discharge this task in such a way as to provide the Parties with the requisite directions, without substituting itself for them by means of a detailed indication of the methods to be followed and the factors to be taken into account for the purposes of a delimitation the carrying out of which the Farties have expressly reserved to themselves.

85. It emerges from the history of the development of the legal regime of the continental shelf, which has been reviewed earlier, that the essential reason why the equidistance method is not to be regarded as a rule of law is that, if it were to be compulsorily applied in all situations, this would not be consonant with certain basic legal notions which, as has been observed in paragraphs 48 and 55, have from the beginning reflected the opinio juris in the matter of delimitation; those principles being that delimitation must be the object of agreement between the States concerned, and that such agreement must be arrived at in accordance with equitable principles. On a foundation of very general precepts of justice and good faith, actual rules of law are here involved which govern the *47 delimitation of adjacent continental shelves- that is to say, rules binding upon States for all delimitations; -in short, it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles, in accordance with the ideas which have always underlain the development of the legal regime of the continental shelf in this field, namely:

(a) the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it;

(b) the parties are under an obligation to act in such a way that, in the particular case, and taking all the circumstances into account, equitable principles are applied,-for this purpose the equidistance method can be used, but other methods exist and may be employed, alone or in combination, according to the areas involved;

(c) for the reasons given in paragraphs 43 and 44, the continental shelf of any State must be the natural prolongation of its land territory and must not encroach upon what is the natural prolongation of the territory of another State.

***

86. It is now necessary to examine these rules more closely, as also certain problems relative to their application. So far as the first rule is concerned, the Court would recall not only that the obligation to negotiate which the Parties assumed by Article 1, paragraph 2, of the Special Agreements arises out of the Truman Proclamation, which, for the reasons given in paragraph 47, must be considered as having propounded the rules of law in this field, but also that this obligation merely constitutes a special application of a principle which underlies all international relations, and which is moreover recognized in Article 33 of the Charter of the United Nations as one of the methods for the peaceful settlement of international disputes. There is no need to insist upon the fundamental character of this method of settlement, except to point out that it is emphasized by the observable fact that judicial or arbitral settlement is not universally accepted.

87. As the Permanent Court of International Justice said in its Order of 19 August 1929 in the case of the Free Zones of Upper Savoy and the District of Gex, the judicial settlement of international disputes 'is simply an alternative to the direct and friendly settlement of such disputes between the parties' (P.C.I.J., Series A, No. 22, at p. 13). Defining the content of the obligation to negotiate, the Permanent Court, in its *48 Advisory Opinion in the case of Railway Traffic between Lithuania and Poland, said that the obligation was 'not only to enter into negotiations but also to pursue them as far as possible with a view to concluding agreements', even if an obligation to negotiate did not imply an obligation to reach agreement (P.C.I.J., Series A/B, No. 42, 1931, at p. 116). In the present case, it needs to be observed that whatever the details of the negotiations carried on in 1965 and 1966, they failed of their purpose because the Kingdoms of Denmark and the Netherlands, convinced that the equidistance principle alone was applicable, in consequence of a rule binding upon the Federal Republic, saw no reason to depart from that rule; and equally, given the geographical considerations stated in the last sentence of paragraph 7 above, the Federal Republic could not accept the situation resulting from the application of that rule. So far therefore the negotiations have not satisfied the conditions indicated in paragraph 85 (a), but fresh negotiations are to take place on the basis of the present Judgment.

***

88. The Court comes next to the rule of equity. The legal basis of that rule in the particular case of the delimitation of the continental shelf as between adjoining States has already been stated. It must however be noted that the rule rests also on a broader basis. Whatever the legal reasoning of a court of justice, its decisions must by definition be just, and therefore in that sense equitable. Nevertheless, when mention is made of a court dispensing justice or declaring the law, what is meant is that the decision finds its objective justification in considerations lying not outside but within the rules, and in this field it is precisely a rule of law that calls for the application of equitable principles. There is consequently no question in this case of any decision ex aequo et bono, such as would only be possible under the conditions prescribed by Article 38, paragraph 2, of the Court's Statute. Nor would this be the first time that the Court has adopted such an attitude, as is shown by the following passage from the Advisory Opinion given in the case of Judgments of the Administrative Tribunal of the I.L.O. upon Complaints Made against Unesco (I.C.J. Reports 1956, at p. 100):

'In view of this the Court need not examine the allegation that the validity of the judgments of the Tribunal is vitiated by excess of jurisdiction on the ground that it awarded compensation ex aequo et bono. It will confine itself to stating that, in the reasons given by the Tribunal in support of its decision on the merits, the Tribunal said: 'That redress will be ensured ex aequo et bono by the granting to the complainant of the sum set forth below.' It does not appear from the context of the judgment that the Tribunal thereby intended to depart from principles of law. The apparent intention was to say *49 that, as the precise determination of the actual amount to be awarded could not be based on any specific rule of law, the Tribunal fixed what the Court, in other circumstances, has described as the true measure of compensation and the reasonable figure of such compensation (Corfu Channel case, Judgment of December 15th, 1949, I.C.J. Reports 1949, p. 249).'

89. It must next be observed that, in certain geographical circumstances which are quite frequently met with, the equidistance method, despite its known advantages, leads unquestionably to inequity, in the following sense:

(a) The slightest irregularity in a coastline is automatically magnified by the equidistance line as regards the consequences for the delimitation of the continental shelf. Thus it has been seen in the case of concave or convex coastlines that if the equidistance method is employed, then the greater the irregularity and the further from the coastline the area to be delimited, the more unreasonable are the results produced. So great an exaggeration of the consequences of a natural geographical feature must be remedied or compensated for as far as possible, being of itself creative of inequity.

(b) In the case of the North Sea in particular, where there is no outer boundary to the continental shelf, it happens that the claims of several States converge, meet and intercross in localities where, despite their distance from the coast, the bed of the sea still unquestionably consists of continental shelf. A study of these convergences, as revealed by the maps, shows how inequitable would be the apparent simplification brought about by a delimitation which, ignoring such geographical circumstances, was based solely on the equidistance method.

90. If for the above reasons equity excludes the use of the equidistance method in the present instance, as the sole method of delimitation, the question arises whether there is any necessity to employ only one method for the purposes of a given delimitation. There is no logical basis for this, and no objection need be felt to the idea of effecting a delimitation of adjoining continental shelf areas by the concurrent use of various methods. The Court has already stated why it considers that the international law of continental shelf delimitation does not involve any imperative rule and permits resort to various principles or methods, as may be appropriate, or a combination of them, provided that, by the application of equitable principles, a reasonable result is arrived at.

91. Equity does not necessarily imply equality. There can never be any question of completely refashioning nature, and equity does not require that a State without access to the sea should be allotted an area of continental shelf, any more than there could be a question of rendering the situation of a State with an extensive coastline similar to that of a *50 State with a restricted coastline. Equality is to be reckoned within the same plane, and it is not such natural inequalities as these that equity could remedy. But in the present case there are three States whose North Sea coastlines are in fact comparable in length and which, therefore, have been given broadly equal treatment by nature except that the configuration of one of the coastlines would, if the equidistance method is used, deny to one of these States treatment equal or comparable to that given the other two. Here indeed is a case where, in a theoretical situation of equality within the same order, an inequity is created. What is unacceptable in this instance is that a State should enjoy continental shelf rights considerably different from those of its neighbours merely because in the one case the coastline is roughly convex in form and in the other it is markedly concave, although those coastlines are comparable in length. It is therefore not a question of totally refashioning geography whatever the facts of the situation but, given a geographical situation of quasi-equality as between a number of States, of abating the effects of an incidental special feature from which an unjustifiable difference of treatment could result.

92. It has however been maintained that no one method of delimitation can prevent such results and that all can lead to relative injustices. This argument has in effect already been dealt with. It can only strengthen the view that it is necessary to seek not one method of delimitation but one goal. It is in this spirit that the Court must examine the question of how the continental shelf can be delimited when it is in fact the case that the equidistance principle does not provide an equitable solution. As the operation of delimiting is a matter of determining areas appertaining to different jurisdictions, it is a truism to say that the determination must be equitable; rather is the problem above all one of defining the means whereby the delimitation can be carried out in such a way as to be recognized as equitable. Although the Parties have made it known that they intend to reserve for themselves the application of the principles and rules laid down by the Court, it would, even so, be insufficient simply to rely on the rule of equity without giving some degree of indication as to the possible ways in which it might be applied in the present case, it being understood that the Parties will be free to agree upon one method rather than another, or different methods if they so prefer.

93. In fact, there is no legal limit to the considerations which States may take account of for the purpose of making sure that they apply equitable procedures, and more often than not it is the balancing-up of all such considerations that will produce this result rather than reliance on one to the exclusion of all others. The problem of the relative weight to be accorded to different considerations naturally varies with the circumstances of the case.

94. In balancing the factors in question it would appear that various aspects must be taken into account. Some are related to the geological, others to the geographical aspect of the situation, others again to the *51 idea of the unity of any deposits. These criteria, though not entirely precise, can provide adequate bases for decision adapted to the factual situation.

95. The institution of the continental shelf has arisen out of the recognition of a physical fact; and the link between this fact and the law, without which that institution would never have existed, remains an important element for the application of its legal regime. The continental shelf is, by definition, an area physically extending the territory of most coastal States into a species of platform which has attracted the attention first of geographers and hydrographers and then of jurists. The importance of the geological aspect is emphasized by the care which, at the beginning of its investigation, the International Law Commission took to acquire exact information as to its characteristics, as can be seen in particular from the definitions to be found on page 131 of Volume I of the Yearbook of the International Law Commission for 1956. The appurtenance of the shelf to the countries in front of whose coastlines it lies, is therefore a fact, and it can be useful to consider the geology of that shelf in order to find out whether the direction taken by certain configurational features should influence delimitation because, in certain localities, they point-up the whole notion of the appurtenance of the continental shelf to the State whose territory it does in fact prolong.

96. The doctrine of the continental shelf is a recent instance of encroachment on maritime expanses which, during the greater part of history, appertained to no-one. The contiguous zone and the continental shelf are in this respect concepts of the same kind. In both instances the principle is applied that the land dominates the sea; it is consequently necessary to examine closely the geographical configuration of the coastlines of the countries whose continental shelves are to be delimited. This is one of the reasons why the Court does not consider that markedly pronounced configurations can be ignored; for, since the land is the legal source of the power which a State may exercise over territorial extensions to seaward, it must first be clearly established what features do in fact constitute such extensions. Above all is this the case when what is involved is no longer areas of sea, such as the contiguous zone, but stretches of submerged land; for the legal regime of the continental shelf is that of a soil and a subsoil, two words evocative of the land and not of the sea.

97. Another factor to be taken into consideration in the delimitation of areas of continental shelf as between adjacent States is the unity of any deposits. The natural resources of the subsoil of the sea in those parts which consist of continental shelf are the very object of the legal regime established subsequent to the Truman Proclamation. Yet it frequently occurs that the same deposit lies on both sides of the line dividing a continental shelf between two States, and since it is possible to exploit such a deposit from either side, a problem immediately arises on account of the risk of prejudicial or wasteful exploitation by one or other of the States concerned. To look no farther than the North Sea, the practice *52 of States shows how this problem has been dealt with, and all that is needed is to refer to the undertakings entered into by the coastal States of that sea with a view to ensuring the most efficient exploitation or the apportionment of the products extracted-(see in particular the agreement of 10 March 1965 between the United Kingdom and Norway, Article 4; the agreement of 6 October 1965 between the Netherlands and the United Kingdom relating to 'the exploitation of single geological structures extending across the dividing line on the continental shelf under the North Sea'; and the agreement of 14 May 1962 between the Federal Republic and the Netherlands concerning a joint plan for exploiting the natural resources underlying the area of the Ems Estuary where the frontier between the two States has not been finally delimited.) The Court does not consider that unity of deposit constitutes anything more than a factual element which it is reasonable to take into consideration in the course of the negotiations for a delimitation. The Parties are fully aware of the existence of the problem as also of the possible ways of solving it.

98. A final factor to be taken account of is the element of a reasonable degree of proportionality which a delimitation effected according to equitable principles ought to bring about between the extent of the continental shelf appertaining to the States concerned and the lengths of their respective coastlines,-these being measured according to their general direction in order to establish the necessary balance between States with straight, and those with markedly concave or convex coasts, or to reduce very irregular coastlines to their truer proportions. The choice and application of the appropriate technical methods would be a matter for the parties. One method discussed in the course of the proceedings, under the name of the principle of the coastal front, consists in drawing a straight baseline between the extreme points at either end of the coast concerned, or in some cases a series of such lines. Where the parties wish to employ in particular the equidistance method of delimitation, the establishment of one or more baselines of this kind can play a useful part in eliminating or diminishing the distortions that might result from the use of that method.

99. In a sea with the particular configuration of the North Sea, and in view of the particular geographical situation of the Parties' coastlines upon that sea, the methods chosen by them for the purpose of fixing the delimitation of their respective areas may happen in certain localities to lead to an overlapping of the areas appertaining to them. The Court considers that such a situation must be accepted as a given fact and resolved either by an agreed, or failing that by an equal division of the overlapping areas, or by agreements for joint exploitation, the latter solution appearing particularly appropriate when it is a question of preserving the unity of a deposit.

***

*53 100. The Court has examined the problems raised by the present case in its own context, which is strictly that of delimitation. Other questions relating to the general legal regime of the continental shelf, have been examined for that purpose only. This regime furnishes an example of a legal theory derived from a particular source that has secured a general following. As the Court has recalled in the first part of its Judgment, it was the Truman Proclamation of 28 September 1945 which was at the origin of the theory, whose special features reflect that origin. It would therefore not be in harmony with this history to over-systematize a pragmatic construct the developments of which have occurred within a relatively short space of time.

*****

101. For these reasons,

THE COURT,

by eleven votes to six,

finds that, in each case,

(A) the use of the equidistance method of delimitation not being obligatory as between the Parties; and

(B) there being no other single method of delimitation the use of which is in all circumstances obligatory;

(C) the principles and rules of international law applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary determined by the agreements of 1 December 1964 and 9 June 1965, respectively, are as follows:

(1) delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other;

(2) if, in the application of the preceding sub-paragraph, the delimitation leaves to the Parties areas that overlap, these are to be divided between them in agreed proportions or, failing agreement, equally, unless they decide on a regime of joint jurisdiction, user, or exploitation for the zones of overlap or any part of them;

(D) in the course of the negotiations, the factors to be taken into account are to include:

*54 (1) the general configuration of the coasts of the Parties, as well as the presence of any special or unusual features;

(2) so far as known or readily ascertainable, the physical and geological structure, and natural resources, of the continental shelf areas involved;

(3) the element of a reasonable degree of proportionality, which a delimitation carried out in accordance with equitable principles ought to bring about between the extent of the continental shelf areas appertaining to the coastal State and the length of its coast measured in the general direction of the coastline, account being taken for this purpose of the effects, actual or prospective, of any other continental shelf delimitations between adjacent States in the same region.

Done in English and in French, the English text being authoritative at the Peace Palace, The Hague, this twentieth day of February, one thousand nine hundred and sixty-nine, in four copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Federal Republic of Germany, to the Government of the Kingdom of Denmark and to the Government of the Kingdom of the Netherlands, respectively.

(Signed) J. L. BUSTAMANTE R., President.

(Signed) S. AQUARONE, Registrar.

Judge Sir Muhammad ZAFRULLA KHAN makes the following declaration:

I am in agreement with the Judgment throughout but would wish to add the following observations.

The essence of the dispute between the Parties is that the two Kingdoms claim that the delimitation effected between them under the Agreement of 31 March 1966 is binding upon the Federal Republic and that the Federal Republic is bound to accept the situation resulting therefrom, which would confine its continental shelf to the triangle formed by lines A-B-E and C-D-E in Map 3. The Federal Republic stoutly resists that claim.

Not only is Article 6 of the Geneva Convention of 1958 not opposable to the Federal Republic but the delimitation effected under the Agreement of 31 March 1966 does not derive from the provisions of that Article as Denmark and the Netherlands are neither States 'whose coasts are opposite each other' within the meaning of the first paragraph of that Article nor are they 'two adjacent States' within the meaning of the *55 second paragraph of that Article. The situation resulting from that delimitation, so far as it affects the Federal Republic is not, therefore, brought about by the application of the principle set out in either of the paragraphs of Article 6 of the Convention.

Had paragraph 2 of Article 6 been applicable to the delimitation of the continental shelf between the Parties to the dispute, a boundary line, determined by the application of the principle of equidistance, would have had to allow for the configuration of the coastline of the Federal Republic as a 'special circumstance'.

In the course of the oral pleadings the contention that the principle of equidistance cum special circumstances had crystallized into a rule of customary international law was not advanced on behalf of the two Kingdoms as an alternative to the claim that that principle was inherent in the very concept of the continental shelf. The Judgment has, in fairness, dealt with these two contentions as if they had been put forward in the alternative and were thus consistent with each other, and has rejected each of them on the merits. I am in agreement with the reasoning of the Judgment on both these points. But, I consider, it is worth mentioning that Counsel for the two Kingdoms summed up their position in regard to the effect of the 1958 Convention as follows:

'... They have not maintained that the Convention embodied already received rules of customary law in the sense that the Convention was merely declaratory of existing rules. Their position is rather that the doctrine of the coastal State's exclusive rights over the adjacent continental shelf was in process of formation between 1945 and 1958; that the State practice prior to 1958 showed fundamental variations in the nature and scope of the rights claimed; that, in consequence, in State practice the emerging doctrine was wholly lacking in any definition of these crucial elements as it was also of the legal regime applicable to the coastal State with respect to the continental shelf; that the process of the definition and consolidation of the emerging customary law took place through the work of the International Law Commission, the reaction of governments to that work and the proceedings of the Geneva Conference; that the emerging customary law, now become more defined, both as to the rights of the coastal State and the applicable regime, crystallized in the adoption of the Continental Shelf Convention by the Conference; and that the numerous signatures and ratifications of the Convention and the other State practice based on the principles set out in the Convention had the effect of consolidating those principles as customary law.'

If it were correct that the doctrine of the coastal State's exclusive rights over the adjacent continental shelf was in process of formation *56 between 1945 and 1958 and that in State practice prior to 1958 it was wholly lacking in any definition of crucial elements as it was also of the legal regime applicable to the coastal State with respect to the continental shelf, then it would seem to follow conclusively that the principle of equidistance was not inherent in the concept of the continental shelf.

Judge BENGZON makes the following declaration:

I regret my inability to concur with the main conclusions of the majority of the Court. I agree with my colleagues who maintain the view that Article 6 of the Geneva Convention is the applicable international law and that as between these Parties equidistance is the rule for delimitation, which rule may even be derived from the general principles of law.

President BUSTAMANTE Y RIVERO, Judges JESSUP, PADILLA NERVO and AMMOUN append Separate Opinions to the Judgment of the Court.

Vice-President KORETSKY, Judges TANAKA, MORELLI, LACHS and Judge ad hoc SORENSEN append Dissenting Opinions to the Judgment of the Court.

(Initialled) J. L. B.-R.

(Initialled) S. A.

*57 SEPARATE OPINION OF PRESIDENT J. L. BUSTAMANTE Y RIVERO

[Translation]

1. I share the opinions expressed in the text of the Judgment and the conclusions in its operative provisions, except so far as concerns paragraph 59, with regard to which I must express the reservation that will be found below. Nevertheless, I believe it to be possible to state some further considerations in support of certain principles and rules of law upon which the Parties might also base themselves for the purpose of carrying out the delimitation, the effecting of which they have reserved to themselves by Article 1, paragraph 2, of the Special Agreements whereby the Court was seised.

2. The reasoning I have followed in drawing up the present opinion was the following: although the institution of the continental shelf is a new institution, it is the fact that its application has now become very widespread. Numerous States, in all continents, have adopted its fundamental principles into their legislation and constantly apply them. In this sense, it is not going too far to say that the regime of the continental shelf has today a concrete existence and a growing vitality.

Since the governmental proclamations which lay at its origin (about 25 in number) have but rarely been challenged, but have, on the contrary, set a trend in motion, they have thereby acquired the character of relevant factors from the point of view of international law. While it is true that some proclamations formed the subject of reservations on the part of certain other States, those reservations arose from the fact that the rights proclaimed over the continental shelf gave to this concept an ambit which the objecting States considered excessive; it must consequently be concluded therefrom that the expression of such reservations merely constitutes further evidence of the effective nature of the institution from that time on. The writings of publicists have firmly supported the concept of the continental shelf and have recognized as legitimate its legal foundation, namely: the utilization of the natural resources of the seabed and subsoil for the benefit of the neighbouring peoples and of mankind in general. In several bilateral agreements, States have subsequently confirmed the system by adopting it for their mutual relations. Finally, the Geneva Conference tried to systematize the principles of the new institution in the 1958 Convention on the Continental Shelf and sought to define the methods by which they can be applied.

*58 Having regard to the recent appearance of this new branch of maritime law and to the still limited and not always happy experience that has been had of its methods of application, it is understandable that some hesitation might have been felt with regard to the formal incorporation of all its principles and norms into general international law. It seems to me, however, that certain basic concepts, at any rate, the acceptance of which corresponds to a well-nigh universally held opinion, or the sense of which necessarily flows from the very concept of the continental shelf, are already sufficiently deeply anchored for such incorporation to be possible. This is, moreover, what the Judgment states so far as concerns, for example, the two principles set forth in paragraph 85, sub-paragraphs (a) and (b), the former referring to the obligation to negotiate incumbent upon the States concerned for the purposes of delimiting their continental shelves and the latter referring to the application of equitable principles for determining the rights of the participating parties. These two principles, expressly stated in the Truman Proclamation, respectively reflect the exclusive right of the State, as sovereign, itself to decide on the boundaries set to the national territory, and the need to introduce into the negotiations on the continental shelf, complex in themselves and frequently full of unforeseen factors, that factor of good faith and flexibility which equity constitutes and which reconciles the needs of peaceful neighbourly relations with the rigidity of the law. A third principle is laid down in the Judgment (paragraph 85, sub-paragraph (c)), when it considers as established the notion that the continental shelf of every maritime State is the natural prolongation of its land territory and must not encroach upon that which constitutes the natural prolongation of the land territory of another State. This concept of 'prolongation' is also implicit in the expression 'adjacent to the coast', which is employed in the description of the continental shelf in Article 1 of the Geneva Convention of 1958. I shall demonstrate later that the concept of 'prolongation', which takes on the aspect of 'convergence' in the particular geographical circumstances of closed seas, involves certain limitations regarding the drawing of the boundary line of the shelves situated in such seas.

3. I am nevertheless of the opinion that besides the essential principles which I have just mentioned, it is possible to deduce others from the accepted concept of the continental shelf, whether they be sought in the Truman Proclamation or in Articles 1 and 2 of the Geneva Convention, or whether they be the logical and necessary consequence of adapting the basic principles to certain unavoidable geographical facts of which examples are to be found throughout the world. I have listed such possible supplementary principles below.

4. The concept, already examined, of 'natural prolongation' of the land territory of the coastal State implies, as an obvious logical necessity, a relationship of proportionality between the length of the coastline of the land territory of a State and the extent of the continental shelf *59 appertaining to such land territory. Parallel with this, so far as concerns inter-State relations, the conclusion is inescapable that the State which has a longer coastline will have a more extensive shelf. This kind of proportionality is consequently, in my view, another of the principles embraced by the law of the continental shelf. The Judgment, in paragraphs 94 and 98, mentions this element as one of the factors to be taken into consideration for the delimitation of a shelf; the Court nevertheless did not confer upon it the character of an obligatory principle.

The preceding question leads quite naturally to that of the method to be applied for measuring the length of the coastline of the land territory of a State and, so far as concerns the continental shelf, I do not share the idea that that length must be measured as in the case of the territorial sea, from the low-water line. That criterion, laid down in the 1958 Convention, probably originates from the fact that the institution of the continental shelf is historically subsequent to that of the territorial sea and it was perhaps thought that an apparent similarity between the two cases rendered the adaptation thereof possible. In reality, the cases are different. The continental shelf, being but a natural prolongation of the land territory, forms an integral part thereof and is physically identified with it, so as to constitute a single land mass. A dividing line between the land territory and the shelf consisting of the low-water mark would be a boundary that would be variable, capricious and, furthermore, foreign to the concept of the continental shelf. After all, the low-water mark relates only to a changeable and irregular surface element, viz., the relief or topography of the coast. This uncertain element, subject to numerous physical and geographical circumstances, does not seem to be the most appropriate for defining the starting-point for a land mass such as the continental shelf, the close link between which and the land territory is beyond discussion. A more stable baseline must be found and it might be obtained by measuring the length of the coastline according to its general direction, by means of a straight line drawn between the two extreme points of the marine frontier of the State concerned. In paragraph 98, the Judgment mentions this solution as one of the possible solutions in the present case. I must add that the principle of equity, which would apply at the same time as one of the elements which must govern the delimitation to be effected, would enable any difficulty which might arise in practice to be surmounted.

I must deal here with another, very closely related, subject. Neither do I share the viewpoint of the Geneva Convention of 1958, according to which the continental shelf commences only beyond the outer limit of the territorial sea. Such a viewpoint seems to me artificial and even highly debatable, not only because it contradicts the idea of adjacency to the coast referred to in Article 1 of the Convention, but, above all, because it upsets the geological concept of the land territory of which the continental shelf is but a physical prolongation under the territorial sea and even beyond it. Geology admits neither a break nor an intermediate *60 space between the coast of the land territory and the line where the continental shelf would be deemed to commence at the outer limit of the territorial sea. It seems to me that the truth is otherwise: that the territorial sea is superjacent to that part of the shelf which is closest to the coast. But there is no geological difference between the bed of the territorial sea and that part which extends beyond the outer limit of that sea. These two beds constitute in fact but a single geological formation: the continental shelf, the characteristic of which is to constitute an area of shallow depth in relation to the level of the superjacent sea, gradually prolongs the continent until the continental platform is reached, from which there is a sudden sharp drop to the great depths of the high seas.

5. If, on the basis of the criterion adopted in the Convention, the possibility of utilizing the natural resources of the seabed and of its subsoil close to the coast was the determinant reason in the creation of the continental shelf, it goes without saying that certain fundamental principles must be stated which furnish a basis for the legal system governing the exploration and exploitation of those resources.

In my opinion, the fact of taking into consideration the existence or the location of natural resources in the area of a continental shelf, far from constituting in principle an essential factor for judging where to draw the boundary with a neighbouring shelf, rather entails the risk of constituting a disturbing factor to the detriment of equity. But a court cannot ignore reality, which latter shows that at the origin of the concept of the continental shelf, opening to coastal States the possibility of exploiting the riches which it contains, is to be found a criterion of social and economic import. That is why it is indispensable to consider whether, on the basis of the elements furnished by the accepted concept of the continental shelf and contained in the initial proclamations, in the writings of qualified publicists, in the proceedings at Geneva and in the practice of States, it is possible to formulate certain postulates aimed at co-ordinating the basic concepts of the institution and the factors represented by geographical circumstances, technical requirements or economic needs. This notion of co- ordination is summarized in the principles and rules stated hereunder:

(a) The coastal State exercises sovereign rights over the continental shelf appertaining to its territory for the purposes of the exploration and exploitation of the natural resources to be found therein.

(b) The sovereign rights of a State over its continental shelf are exercised independently of the existence or non-existence of natural resources in the said shelf.

(c) The delimitation of any given continental shelf is not in principle subject to the location or direction of fields or deposits of such natural resources as may exist in the region in which the shelf is to be found, unless decisive circumstances so require, or an agreement to the contrary is reached between the States concerned, without prejudice to the rights of third parties.

*61 (d) The exploitation of a deposit extending across the boundary line of a continental shelf shall be settled by the adjacent States in accordance with the principles of equity and, preferably, by means of the system of joint exploitation or some other system which does not reduce the efficiency of working or the quantities obtained. (The Court, in paragraph 97, touched upon the question of deposits as one of the factors which must reasonably be taken into consideration by the Parties.)

6. The special geographic situation of the continental shelves concerned requires, in my opinion, that rules of law, themselves also special, must be sought so as to enable the Parties to arrive at a just and equitable delimitation. The problems with which the Court has to deal must be placed within their particular geographical context. The continental shelves of Denmark, the Federal Republic of Germany, and the Netherlands, whose delimitation has to be carried out, appertain respectively to the territories of those three States, which are situated on the eastern coastline of the North Sea, while several other States border the rest of the approximately oval perimeter of this quasi-closed sea on the north, south and west. The area thus circumscribed is taken up by the various national continental shelves lying no deeper than 200 metres below sealevel (with the exception of the Norwegian Trough). The Parties agree as to this fact.

This special geographical configuration of the North Sea confers on the continental shelves included within it certain characteristic aspects so far as their location, form and mutual delimitation are concerned, and these aspects have an influence upon the legal regime. The aspects in question are as follows:

(a) In this kind of configuration, the natural prolongation of the territory of each State, starting from the shore, moves in a seaward direction towards the central area of the sea under consideration; while the lateral boundary lines of each shelf naturally and necessarily converge towards that same central area. The principle of convergence is therefore normal for the delimitation of the shelves in this kind of sea unless the Parties agree upon another solution.

(b) The natural convergence of the lateral delimitation lines of djacent shelves belonging to such seas in fact precludes the possibility of giving to those lines parallel directions and, in consequence, of obtaining shelves of a rectangular shape. This convergence therefore introduces a new factor, one which the necessity of avoiding all overlapping or encroachment renders practically inevitable, i.e., the progressive narrowing of the shelf as it approaches the central apex; the shelf then takes on approximately the form of a trapezium or triangle, according to whether the central maritime area is more or less elongated or, on the contrary, more nearly circular.

In the light of these facts, which demand that the concept of 'prolongation' be adapted to the exigencies of geography, and referring for the *62 time being solely to the problem of lateral delimitation, I believe that there is justification for laying down in the present instance, as a rule to be followed by the Parties, the adoption of the system of converging delimitation lines for the purpose of drawing the lateral boundaries of the continental shelf of the Federal Republic of Germany, both as concerns the German-Danish boundary to the north and as concerns the German-Dutch boundary to the south; of course the following two essential elements must also be borne in mind:

(i) the delimitation will be made only beyond the partial boundary lines determined by the treaties of 1 December 1964 and 9 June 1965 already cited (points D and B on the map shown as Annex 16 in the Counter- Memorial);

(ii) the extremities of the two lateral boundary lines to be drawn will meet the line or, as the case may be, the point indicating the western side or apex of the German shelf, the special legal situation of which is described in sub-paragraph (f) of the present paragraph. It is for the Parties to choose the method or methods for carrying out this lateral delimitation, in conformity with the terms of the Special Agreements now in force, as well as to combine those methods with the principle of equity, as contemplated in paragraph 85 of the Judgment.

(c) The convergence of the lateral boundaries of this type of shelf necessitates the consideration of a new and different delimitation, that of the apex or end boundary of the shelf in question, in the area where as a result of contact with the extremity or apex of the shelf of the opposite State there is a danger of a conflict of rights. This delimitation is customarily effected by the drawing of a median line, except in the case of agreement of the Parties to the contrary, or of the existence of special circumstances. So far as the North Sea is concerned, the use of the median line by the majority of the coastal States in the agreements for delimitation of their shelves of which mention will be made below shows that a regional customary law has come into existence on this point.

(d) The characteristics considered in the three preceding paragraphs are not, in my opinion, new expressions or concepts of the law of the continental shelf, but are simply logical adaptations of other principles, which have already been described, under the inescapable influence of the geographical facts. For example, convergence is nothing but an aspect of the principle of the natural prolongation of the land territory, this prolongation being to a certain extent restricted as a result of the pressures resulting from local geography. The determination of the apex, as one of the boundaries of the continental shelf, is implicit in the definition thereof, since it must not be undefined and must not be prolonged beyond the neighbouring domain, that is to say beyond the apex of the shelf of the opposite State, nor yet beyond the points where the depth of the sea exceeds the 200-metre depth line, if the Convention *63 of 1958 is adopted. The principle of what is reasonable applies, in my view, in all cases, for the recognition as legally proper of these occasional variants of the principles and rules which are the basis of the legal regime of the continental shelf, as contained in its generally accepted definition, which principles have been backed by sufficiently repeated support of the opinio juris among States, and by the writings of publicists.

It is as well to add that the expression of these ideas does not imply that the present writer would wish to propose the application, in the present case, of the sector system (a concept which, from the strictly technical point of view, does not correspond to the situation in the North Sea), and less still to distribute between the Parties shares of such sectors taken from the shelf as a whole. The present writer's argument is particularly directed to the fact that, in the North Sea, taking into account its peculiar configuration, particularly on the eastern coast, the lateral demarcation lines of the national shelves necessarily converge toward the central area, and the fact that it is necessary to demarcate not merely the lateral boundaries of each shelf but also the apex or end boundary in order to fix in law the neighbour- relationship with the shelf of the opposite State.

(e) It remains to be added-and this observation seems to me not merely important, but possibly decisive-that in practice a substantial number of the continental shelves of the North Sea have already been delimited, wholly or in part, according to the very principles which I have just expressed. In other words, a body of treaty-law which is fairly widespread and generally accepted exists on this question among the coastal States of the North Sea. An examination of the Anglo-Norwegian Agreement of 10 March 1965, the Anglo-Dutch Agreement of 6 October 1965, the Danish-Norwegian Agreement of 8 December 1965, and the Anglo-Danish Agreement of 3 March 1966, is sufficient to show that the system of convergence lines towards the central space, and the use of the median line, have invariably been adopted for the delimitation of the shelves between opposite States, with reference to their apices. The German-Dutch Agreement of 1 December 1964 and the German-Danish Agreement of 9 June 1965 on the lateral delimitation of the shelves near the coast also show that the two partial lines which were drawn up by these Agreements, although their course was interrupted, are clearly lateral lines converging towards the central region of the sea. Consequently, when in this opinion I draw the Parties' attention to the obligation to refer, for the delimitation of the German continental shelf, to the rule set out in paragraph 6, I do no more than observe the existence of a customary law of a regional nature, which in the form of treaty law has generally prevailed for some years in the practice of coastal States of the North Sea.

(f) It still remains to determine the principles and rules according to which the delimitation of the apex (west side) of the shelf of the Federal Republic of Germany should be effected by the Parties. This demands *64 first that the legal situation be examined which results in this connection from the Agreement of 31 March 1966 between the Netherlands and Denmark on the delimitation of the continental shelves which these two countries have allotted to themselves on the basis of the equidistance principle; this also requires that the situation be studied which derives from the Agreements of 6 October 1965 and 3 March 1966, determining by an unbroken median line (points G-F-H on the map, Annex 16 to the Counter-Memorial) the boundaries between the apices of the Anglo-Dutch and Anglo-Danish shelves respectively.

As to the first of these three agreements, the Court has considered that it was not opposable to the Federal Republic of Germany which, not having been a party thereto, informed the contracting parties of its reservations (Annex 15 to the Memorial). The Court has also indicated that, Denmark and the Netherlands not being adjacent States, their application of the equidistance system was not in conformity with the text of Article 6, paragraph 2, of the 1958 Geneva Convention.

So far as concerns the two other agreements mentioned (Netherlands/United Kingdom and Denmark/United Kingdom), in regard to which the Federal Republic of Germany has also made observations (Annexes 10 and 13 to the Memorial), it is not for the Court to make any finding as to their content or validity, since there is among the contracting parties thereto a State which is not a party to the present cases; according to the terms of the Special Agreements, the Court lacks jurisdiction. Since this is how matters stand, there would be no possibility of the Court laying down any rule concerning the drawing of a median line as between the United Kingdom and the Federal Republic. From the hypothetical point of view, various possibilities could be envisaged for the future: one might contemplate an Anglo-German settlement, in which the Netherlands and Denmark would acquiesce, which would enable the Anglo-Dutch- Danish median line to be redrawn so as to introduce therein, probably with a slight eastward inflection, a small section of Anglo-German median line, or simply a point, if it is the apex of a triangle which is envisaged; one might also imagine a tripartite agreement between Federal Germany, Denmark and the Netherlands in which the theoretical or mathematical position of a German- British median line would be fixed for the sole purpose of situating upon it the line (or point) where it would meet the two Danish-German and Dutch-German lateral boundary lines of the continental shelf of the Federal Republic, which lines would be drawn in conformity with the indications of paragraph 6 (b) above-the purpose thereof being the final completion of the delimitation of the German shelf. In the latter hypothesis, a narrow passage would probably preserve the junction of the extremities of the Dutch and Danish shelves behind the German shelf and, that being so, it would not be necessary for the United Kingdom to participate contractually for the purpose of adjusting the present median line. These hypotheses or perhaps others, more acceptable or more practical, might be *65 envisaged outside the ambit of the proceedings before the Court; but they all give rise to the profound conviction that in order to settle this situation in a satisfactory manner the Court has, in my view no other rule to prescribe to the Parties than observance of the principle of equity, always inspired by the two legal factors already defined; the concept of lateral convergence starting from points B and D of the map referred to above, and the concept of access to what would at least in theory be the Anglo-German median line or a point thereon, whether it be that the negotiations provide for the apex of a trapezium, or whether they provide for that of a triangle. At this point I must revert to the text of paragraph 85 (a) and (b) of the Judgment:

'the parties are under an obligation to enter into negotiations [which] ... are meaningful, ... [and] are under an obligation to act in such a way that, in the particular case, and taking all the circumstances into account, equitable principles are applied'.

***

Having thus expressed my separate opinion, I must go on to add the following declaration:

The comparison given in paragraph 59 of the Judgment by way of example is quite correct when it shows the quite different effects on the equidistance line of certain irregular configurations of the coastline according to whether the line is used for drawing the lateral boundaries of territorial waters, whose seaward extent is not considerable, or for defining the lateral boundaries of more extensive continental shelves. But from the fact that no uniform agreement, still less unanimity, exists between States as to the breadth of the territorial sea of each of them, and that it is not always certain that in every case the breadth of the continental shelf of a given State will extend beyond that of its territorial sea, it is impossible to conclude with certainty that the deviation-effects affecting the equidistance line will occur in practice in the way and to the extent indicated in that text. I have therefore thought it preferable to express some reservations so far as concerns my adherence to the content of the said paragraph 59, the more so in that if the problems of the territorial sea are connected problems, they do not directly constitute the principal object of the dispute, which concerns the continental shelf in concreto.

(Signed) J. L. BUSTAMANTE Y RIVERO.

*66 SEPARATE OPINION OF JUDGE JESSUP

I concur in the Judgment of the Court and especially in its conclusion that the equidistance method or principle is not established as obligatory in international law. It would be possible to emphasize by more detailed quotations how crystal clear it is that neither the International Law Commission nor its Committee of Experts considered that 'equidistance' was prescribed by existing law or that it was a concept inherent in the very nature of the continental shelf.

In my opinion, more extended discussion than is to be found in the Judgment of the Court may usefully be devoted to what, in the words of Counsel for Denmark and the Netherlands, are 'some of the realities of the 'just and equitable share' in the present cases'. At the same time, I agree with the Court that the contentions of the Federal Republic in favour of this concept cannot be accepted in the form given to them.

Although, for reasons which were not fully disclosed, but which may be surmised, the Parties in this case chose to deal obliquely in their pleadings with the actuality of their basic interests in the continental shelf of the North Sea, it is of course obvious that the reason why they are particularly concerned with the delimitation of their respective portions is the known or probable existence of deposits of oil and gas in that seabed.

The North Sea is one of the great historic fishing grounds of the world, but there is no indication in the pleadings of the Parties in this case that, in connection with delimiting the shelf, they were in any way concerned about control over such living organisms as are described in paragraph 4 of Article 2 of the 1958 Convention on the Continental Shelf.

In addition to the Parties in this case, Great Britain and Norway are also actively interested in the exploitation of North Sea oil and gas, but the petroleum industry has not evinced any interest in the area of the continental shelf appertaining to Belgium or to France.

As indicated in the Court's Judgment, a series of seven international bilateral agreements among pairs of the littoral States have plotted lines delimiting portions of the shelf which the Parties consider to be appurtenant to themselves and to each other. In these various areas during the last five years, there has been a steadily increasing activity in the exploration and drilling for oil and gas, although private interests for a time *67 naturally hesitated to make the very large investments required [FN1] until the enactment of national laws revealed the terms on which concessions would be granted [FN2] and until the settlement of disputed national claims to certain areas. The ambivalence which characterized the pleadings of the Parties in regard to the relevance of the mineral resources of the continental shelf will appear from a few passages in both the written and the oral pleadings.

The Federal Republic of Germany

The Memorial of the Federal Republic, in Part I, Chapter I, opens with a physical description of the continental shelf of the North Sea. It notes (in section 7):

'After the discovery of a very rich field of natural gas near Slochteren in the Dutch province of Groningen close to the mouth of the Ems, the first test drillings were made in 1963. Since then a number of finds have been made, including several exploitable deposits of natural gas in the British area ...'

References are made to various governmental acts of Denmark, the Federal Republic, Great Britain and the Netherlands, relative to future development of these mineral resources (sections 12-15).

As the Memorial (in Chapter I of Part II) begins to develop the legal theory of 'the just and equitable share', there is clear reference to natural resources (sections 29 and 30). The emphasis on resources is strengthened in sections 34 and 35 especially by the invocation of the law on the apportionment of the waters of a river basin. In section 48, Judge Hudson is quoted as stating that 'the economic value of proven deposits of minerals' should be taken into consideration in the delimitation of the continental shelf. In section 66, one reads:

'From the point of view of exploitation and control of such submarine areas, the decisive factor is not the nearest point on the *68 coast, but the nearest coastal area or port from which exploitation of the seabed and subsoil can be effected. The distance of an oil, gas or mineral deposit from the nearest point on the coast is irrelevant for practical purposes, even for the laying of a pipe-line, if this point on the coast does not offer any possibilities for setting up a supply base for establishing a drilling station or for the landing of the extracted product.'

As the Memorial proceeds to develop the argument about 'special circumstances', there are references and quotations to the effect that the location of 'indivisible deposits of mineral oil or natural gas' may constitute such circumstances (section 70). These references are repeated in section 79, where it is said that-

'the literature on the subject attributes relevance also to historical, economic, and technical factors, in particular to the geographical distribution of the mineral resources of the continental shelf and to the maintenance of the unity of their deposits' [FN3].

It is not wholly clear from the text, however, whether this is the 'geographical criterion' to which the Federal Republic would attribute primary importance. However, in the following section, the Memorial, in arguing for the 'principle of equality', asserts that all the coastal States of the North Sea are interested, inter alia, 'in the appropriate exploitation of the mineral deposits of the seabed in order to avoid wasteful or harmful methods of extraction which would lead to despoliation'. Here reference is made to the Supplementary Agreement of 14 May 1962 to the German-Netherlands Ems-Dollard Treaty of 8 April 1960, which provides for joint exploitation and sharing of costs and profits in the Ems Estuary [FN4].

Finally the Memorial, in section 95, at least hints that the Court would be free to indicate that the location of mineral resources may be one of the criteria to be taken into account 'in order to achieve a just and equitable apportionment'.

In the Reply (section 31) there is a discussion of allegations in the *69 Danish Counter-Memorial to the effect that the Federal Republic had been influenced by recently acquired knowledge of the prospects for finding oil and gas in the continental shelf. The Reply asserts that-

'the German explorations referred to in the Counter-Memorial could not possibly provide the Federal Republic of Germany with reliable information about the existence of oil and gas deposits in the disputed area. Only actual drilling as undertaken in 1967 under a Danish concession, might have resulted in such information.'

It is added that 'German explorations were stopped on the request of the Danish Government in the disputed area' but that the latter granted drilling concessions there.

Denmark

Chapter I of the Danish Counter-Memorial at once draws attention to the interest in mineral resources by leading off in section 7 with a somewhat detailed discussion of explorations and drillings in the North Sea beginning as early as 1963 with the single Danish concessionnaire making its first drillings in 1966. The reader is referred to Annex 7 of the Counter-Memorial which is a memorandum by the Adviser to the Danish Concessionnaire together with a map showing the location of what then (1967) were deemed the most promising locations for wells. The memorandum also called attention to the existence of a ridge extending about 220 kilometres into the North Sea known as the 'Fyn- Grindsted High'. It is stated that due to its geological structure, this ridge is 'considered devoid of hydrocarbon prospects of importance, and ... consequently reduces the prospective area of Denmark and the Danish North Sea continental shelf considerably'. In Chapter II of the Counter-Memorial, sections 14-16 set forth further details concerning exploration and exploitation of oil and gas in the continental shelf area claimed by Denmark, including mention of the 1963 concession to the A. P. Moller Companies. In Chapter II, sections 21 and 22 describe German explorations in the North Sea continental shelf 'including the southern part of the Danish shelf area'. Reference is made to the Danish protest and assertions which have been mentioned in connection with the Reply of the Federal Republic. It is also remarked that the German proclamation of 1964 concerning the exclusive rights in the continental shelf was probably inspired by press reports that an American company [FN5] was planning to drill outside the German territorial sea.

*70 In sections 31 and 34, which deal with the negotiations between Denmark, the Federal Republic and the Netherlands, reference is made to the German suggestions of possible joint utilization of resources in certain areas, but no opinion is expressed.

Later, in section 49, the Danish Counter-Memorial argues that the German Memorial confuses the question of 'space' with the question of 'resources' and in this connection rejects the invoked analogy of the waters of a river basin.

In section 125, the Danish Counter-Memorial replies to the point made in section 66 of the German Memorial to the effect that the important coastal point must be one useful in connection with drillings and extractions of minerals. The Counter-Memorial states that-

'experience shows that, if a deposit is exploited, the nearest points on the coast, even if theretofore unused or scarcely inhabited, may be developed into important elements of support for the exploitation ...'

In section 149 there is reference to certain bilateral agreements between North Sea States providing for consultation in regard to the exploitation of resources bordering the boundary line [FN6].

The Netherlands

The Counter Memorial of the Netherlands, like that of Denmark, but in less detail, opens Chapter I with some references to the early drillings in the North Sea. The discussion is expanded in section 11, showing that gravity measurements and seismic explorations had been conducted by Netherlands interests (especially Nederlandse Aardolie Maatschappij-N.A.M.) in the North Sea since 1956. Since 1960 'these activities have been especially concentrated on the northern part and up to the median lines which separate the Netherlands part from the German and Danish parts of the shelf'. Between August 1962 and 1966, a total of 24 licences had been granted to about 19 companies or groups of companies representing American, Belgian, British, French, German and Italian interests; these licences 'cover all of that part of the continental shelf which comes under the jurisdiction of the Netherlands on the basis of the equidistance principle'.

Further licences have been issued since the new Netherlands legislation went into effect in early 1967. Figure 2 on page 315 of the Netherlands *71 Counter-Memorial shows the charting of the blocks for which licences are granted.

In section 18, the Counter-Memorial explains that the domestic legislation and international agreements of the Netherlands-

'take into account the possibility of the presence of single geological structures extending across the dividing line between parts of the continental shelf under the North Sea'.

Section 29 refers to the Special Agreement with the Federal Republic concerning co-operative activities in the Ems Estuary where the international frontier 'has been disputed for centuries'.

As in section 49 of the Danish Counter-Memorial, the Netherlands Counter- Memorial in section 43 replies to the German argument invoking the rules on sharing waters of a river-basin. Similarly, section 119 develops the same argument as that in the Danish Counter-Memorial in section 125, in respect of the relative importance of various points on the coast. Likewise, in section 143, one finds the discussion of special agreements covering situations in which there are 'indivisible deposits of mineral oil or natural gas'.

The Common Rejoinder of Denmark and the Netherlands adds little to the general picture already presented. But in section 20, where the issue of the distinction between 'space' or 'area' and 'resources' is further developed, it is stated that-

'there is no necessary connection between the surface of an area and the amount of exploitable resources therein. ... Indeed the total amount of the natural resources of the area, indicated as the continental shelf beneath the North Sea, is unknown and the same goes for the location of those resources.'

In section 21, where there is further rebuttal of the argument based on the use of waters of international rivers, there is the following statement which is not lacking in significance:

'Surely it is possible that a single geological structure extends across a boundary line on the continental shelf, as it is possible that a single geological structure extends across the delimitation lines between concession areas on the part of the continental shelf appertaining to one State. Both municipal legislations and the international practice of States show that the problems arising from such a situation are not solved by a modification of the boundaries of the concession area or of the continental shelf as the case may be, but by different methods which do not affect those boundaries. In this connection reference is made to paragraph 18 of the Netherlands Counter- Memorial ...'

*72 -which deals with consultations in case of imbrications or overlaps. Section 22 argues that the Federal Republic itself renounced basing its claim on the sharing of 'resources'.

In section 51, it is recalled that in both the Counter-Memorials (Danish, paragraph 88 and Netherlands, paragraph 82) it had been pointed out that there had not been much occasion for States to make treaties concerning lateral boundaries 'before the question of exploiting the mineral resources of the seabed and subsoil arose'.

It is apparent from the above extracts that the problem of the exploitation of the oil and gas resources of the continental shelf of the North Sea was in the front of the minds of the Parties but that none of them was prepared to base its case squarely on consideration of this factor, preferring to argue on other legal principles which are sometimes advanced with almost academic detachment from realities.

In the oral proceedings, there are a number of statements which are of interest in considering whether the known or probable location of mineral resources is a key factor.

From the side of the Federal Republic, its Agent, in his opening address on 23 October stated flatly:

'The main consideration that influences State practice in the acquisition and delimitation of continental shelf areas is the idea of getting a share in the potentialities of the continental shelf that have accrued to the coastal States by the progress of modern technology.'

All of these various but often ambivalent references to the natural resources of the shelf, considered in the light of the German argument for a 'just and equitable share', led one Member of the Court to put the following question to the Agent of the Federal Republic on 25 October:

'Will the Agent of the Federal Republic of Germany, at a convenient time, inform the Court whether it is the contention of the Federal Republic of Germany that the actual or probable location of known or p tential resources on or in the continental shelf, is one of the criteria to be taken into account in determining what is a 'just and equitable share' of the continental shelf in the North Sea?'

The German Agent replied to this question on 4 November in the following terms:

'In response to this question I would like to state the following: First, the criteria to be taken into account in determining what *73 is a just and equitable share of the continental shelf are primarily, but not exclusively, geographical factors. The consideration of other factors and the weight which should be attributed to them depends on their merits under the circumstances of the concrete case.

Secondly, if, as in the North Sea, there is no reliable information about the actual location of economically exploitable resources of considerable importance, the geographical situation alone determines the equitable apportionment. Once agreement had been reached on the delimitation of the continental shelf, later knowledge as to the location of such resources should not affect the agreed boundary.

Thirdly, economically exploitable resources of considerable importance, located in areas where the boundary is disputed or yet undetermined may, under the principle of the just and equitable share, be taken into account in determining the allocation of areas to one or the other State. This may be accomplished either by changing the course of the boundary line, or by means of joint exploitation if the latter is feasible. Such a case may arise in particular if the boundary line would cut across a single deposit. Since there are no such resources in the North Sea, the delimitation of the continental shelf should be made on the basis of the geographical situation, along the lines suggested by the Federal Republic of Germany. (Emphasis supplied).

In this context, I may add that the simplest way to have achieved an equitable apportionment with respect to known or unknown resources would have been to place the areas of the continental shelf of the North Sea situated farther off the coast under a regime of joint control and exploitation. The Federal Republic had advocated such a solution in the earlier stages of the negotiations; since the North Sea States had begun to divide the continental shelf among themselves by boundaries, such a situation seems to be outside the realm of reality. In the present situation, a division by sectors reaching the centre of the North Sea is an effective way to give the Parties an even chance with respect to the potentialities of the continental shelf.'

It is difficult to reconcile the statement that 'there are no such resources in the North Sea', i.e., where the boundary line would cut across a single deposit, with the statement that 'there is no reliable information about the actual location of economically exploitable resources of considerable importance' in the North Sea. Presumably the Agent had in mind only that part of the North Sea which is in dispute in this case.

Subsequently, on the same day, the German Agent made the following comments:

*74 'If there are several States adjacent to the same continental shelf, this transfer of jurisdiction [to the exclusive jurisdiction of the coastal States] involves a partitioning, among those States, of area, and the potential resources therein, which have accrued to the coastal State from the common fund of mankind. The making of such an apportionment implies that the self-evident principle of the just and equitable share must be given effect. The necessary criteria will have to be developed from the concept of the continental shelf and adapted to the situation of the particular case.' (Emphasis supplied.)

Then, after further invocation of the rules for the uses of waters of international rivers:

'As I have ... pointed out ... the delimitation of continental shelf areas is in its essence not a mere extension of sovereignty. It is primarily a distribution of submarine areas in which each coastal State is given an exclusive right to exploit the potential resources of those areas. Since the resources of the continental shelf which have to be distributed among several adjacent States are as much limited as are the resources of an international water-basin, the law is in both cases faced with the same problem, namely the equitable distribution of such resources.'

The sum total of these comments is somewhat ambiguous when one seeks a direct answer to the question posed by a Member of the Court. Nor is the matter greatly clarified by noting certain remarks of Professor Oda, Counsel for the Federal Republic. On 25 October Professor Oda cited an agreement between Iran and Saudi Arabia concerning a disputed offshore area whereby they did not divide the area-

'by a median line or another geometrical demarcation but rather by a novel, so-called 'economic' solution. This has been done by dividing all of the 'recoverable oil' in the previously disputed area into two equal parts. Ideas which had been advanced earlier, of dividing the 'oil in place' were discarded. The equal share now relates instead to all 'recoverable oil' contained in the pertinent geological structure.'

On the other side, argument for Denmark and the Netherlands did not fail to take account of the realities of the location of resources of oil and gas. On 28 October, the Agent for Denmark made the following statement:

'At the same time the Danish Government must consider this case as being of the utmost importance. Denmark has so far had no natural resources or riches. In the modern search for oil and gas *75 extensive exploration has taken place without positive results, apart from the fact that not very far north of the boundary line in question oil and gas have been found. Even if it is not yet known whether commercial exploitation is possible, the position of the boundary line must be considered as being of the utmost importance.'

On 31 October, the Netherlands Agent hinted, as had the Agent for the Federal Republic, at the possibility of certain difficulties being overcome by means other than changing a boundary line, scilicet, by joint exploitation. He said:

'In both cases there may be said to be an element of artificiality in part of the truly equidistant boundary line ... Furthermore, international law and practice demonstrate that there are other means of solving the problems arising from the artificiality of boundary lines-other means than the drawing of a different boundary line.

In this connection, I may make reference, by way of example, to the United Kingdom/Netherlands Agreement concerning the exploitation of single geological structures overlapping the boundary line.'

On 7 November the same Agent, after dealing again with the invocation of the rules governing the use of the waters of international rivers, said that while the Federal Republic relied on those rules-

'at the same time and on the other hand does not consider the actual or probable location of known or potential resources on or in the continental shelf in the North Sea as one of the criteria for its scheme of so-called equitable apportionment. This, at least [said the Agent] seems to be the upshot of the reply given by the learned Agent of the Federal Republic to one of the questions ...'

put by a Member of the Court, as described heretofore.

On the last day of the oral proceedings, 11 November, Counsel for Denmark and the Netherlands, in the course of a somewhat satirical discussion of what he called the 'macrogeographical' approach, made a somewhat detailed comparison of the economic and particularly of the mineral resources of the three States parties to the case. He noted that the Federal Republic 'has been rich in mineral and fuel' whereas, 'until recently, the Netherlands had quite minor mineral and fuel resources'. Denmark, in turn, 'in the past had altogether negligible mineral and fuel resources'. He continued to note that the Netherlands in recent years has uncovered 'important sources of natural gas and *76 some crude oil' [FN7]. As for Denmark, its economic position-

'might be transformed if oil or natural gas now became available to her in the continental shelf. In this connection the Court was informed, in Chapter I of Part I, and in Annex 7 of the Danish Counter-Memorial, that the quite extensive exploration already carried out indicates that the only areas of promise so far discovered lie just to the north, on the Danish side, of the Danish equidistance boundary. In short, the stretching of the Federal Republic's continental shelf to the so-called centre of the North Sea in the manner demanded by our opponents may well have the result of cutting off Denmark from the one reasonable expectation which she has of acquiring appreciable domestic sources of energy.'

All of these observations, Counsel informed the Court, were presented 'only to indicate some of the realities of the 'just and equitable share' in the present cases'. Finally, he was more dogmatic in asserting that the German Agent's reply to the question from a Member of the Court constituted an agreement that the Court has only to consider 'geographical factors'; in other words he was maintaining that despite his own observations on relative wealth of the three States in mineral fuel resources, the Court was not called upon to take such resources in the continental shelf into account if it sought to determine what is a 'just and equitable share'.

Although the arguments in the pleadings were deflected by the Parties away from outright reliance on the location of hydrocarbons under the North Sea, their bilateral and trilateral negotiations were specifically related to such resources and indicated that more was known about their location than the pleadings indicate [FN8].

The Government of the Federal Republic made it clear from the outset (that is, in the spring of 1964) that it was primarily interested in reaching an agreement with the Netherlands in the area close to shore so that 'the German oil companies will be able to commence drilling operations at the points near the coast in which they are at present mainly interested'. (German Does., No. 8.) The area in question was seaward of the Ems Estuary beyond that part already covered by the 1962 agreement for co-operative exploitation of the mineral resources *77 there. Both Governments noted that national legislation had not yet been enacted and that there was danger of an 'uncontrolled and hence probably inefficient hunt for oil and gas'. But the ultimate reach of the dividing line between the two national areas in the North Sea was always reserved, it being noted that the value of various areas was still unknown. The situation was summarized in a paper dated 10 August 1964, prepared for the Cabinet of the Federal Republic:

'However, in view of the drilling operations for natural gas started by a German syndicate this summer in the western part of the German Bight, an early settlement of the boundary problem in the coastal area was urgently required. Hence the first step was to agree with the Netherlands on the partial boundary laid down in the present draft treaty; it does not prejudice the further course of the boundary in view of the reservations stated by both Parties in the attached Joint Minutes of the Negotiations of 4 August 1964, and it clarifies the situation in the area near the coast on which the German mineral oil industry sets great hopes in view of the large natural gas deposits found in the Netherlands northern province of Groningen.' (German Docs., p. 23.)

The agreement was concluded on 1 December 1964.

From the point of view of the Government of the Federal Republic:

'As far as can be judged at this stage [6 October 1964], the talks with Denmark will not be of the same economic importance as those with the Netherlands, as so far there are no definite suppositions that any mineral oil and natural gas deposits worth prospecting are to be found in the German- Danish boundary area ...' (German Docs., p. 26.)

On the Danish side, the concessionnaire, A. P. Moller Companies, Ltd., who worked closely with the Government, shared a view which had been expressed in the Netherlands-German negotiations, namely that the German-Netherlands inshore agreement was due to pressure from the oil companies, and that the German- Danish boundary area held very slight prospects.

According to a Danish Government memorandum dated 17 February 1965:

'At a meeting held to deal with the question of continuing the *78 negotiations with Germany and attended by representatives of the Ministry of Foreign Affairs, the Ministry of Public Works, and the Danish Syndicate which has been granted an exclusive concession to explore and exploit deposits of hydrocarbons in the Danish underground and the continental shelf, the representative of the Syndicate said that it was not actually or concretely interested in having established a Danish-German equidistance line of demarcation in the North Sea area next to the coast, because in view of the results of the explorations made in that area and in view of other information available it was to be assumed that there was only little likelihood of finding deposits of gas or oil there; the Syndicate would not be particularly active there. However, there were appreciably greater possibilities of finding deposits of gas or oil further to the west, i.e. towards the middle of the North Sea in the border regions adjacent to Germany, the Netherlands, and Great Britain. The Syndicate is particularly interested in that area, which area would naturally be lost if the German aspirations were realized.' (Danish Docs., p. 6.)

The concessionnaire accordingly hoped that Danish-Netherlands negotiations would begin soon. But the Danish-German inshore agreement was signed on 9 June 1965 and the Danish-Netherlands agreement was not signed until 31 March 1966, after the close of the tripartite negotiations.

It is of course true that there is no rule of international law which requires States surrounding an area such as the North Sea to delimit their respective sections of the continental shelf in such a way as to apportion to each State a 'fair share' of the mineral resources on or in that shelf. Such a rule would be impossible of application since it would require as a condition precedent precise knowledge of the location and size or productivity of all parts of the area. Such knowledge is not complete for the North Sea even today, some five years after numerous wildcat operations were undertaken; scientific surveys had begun much earlier, and the Slochteren discovery goes back to 1959. The first British licences for drilling in the North Sea were granted in 1964; the first Dutch licences were issued between 1962 and 1966. The Danish concession was extended to the continental shelf in October 1963 but the first wells spudded in were not commercially exploitable. As already noted, more promising results are now indicated in drillings slightly north of the Danish-German 'equidistance' line. In the German sector, 11 or 12 dry holes were drilled in three years, 1964-1967.

If the argument for a 'just and equitable share' had been rested on a notion of apportioning natural resources, the counter-argument might have insisted (as indeed it hinted) that resources on the adjacent mainland *79 or in the bed of the territorial sea must also be taken into account. This would have been disadvantageous to the Federal Republic because of its terrestrial supplies notably between the Dutch frontier and the River Weser.

It has been stated that 'the oil industry is strictly international' and in many of the explorations in the continental shelf in the North Sea the interests of one petroleum company are not confined to a single national sector and are frequently blended in a group or consortium which may contain as many as a dozen separate companies. The same drilling rigs, barges or platforms are chartered to operate first in one national sector and then in another.

'The process of exploring acreage which has already been explored by another company using different ideas and with different hypotheses goes on continually. It frequently happens that significant discoveries of oil and gas are made on acreage which a competitor has given up after completing what he considers an adequate exploration programme.' (North Sea Gas, [U.K.] Labour Party: Report of the North Sea Study Group (August 1967), p. 15.)

However, the interests of the petroleum companies are, of course, not identical with those of the Governments of the several States. The latter are concerned with the national revenue to be derived from fees, taxes, royalties or profit-sharing, with increases in national productivity, and also with the impact on the national balance of payments if imports of fuels to meet domestic needs are eliminated or reduced by the production of natural gas in the State's portion of the continental shelf.

The Court must assume that the Parties have acted in good faith. This means that Denmark and the Netherlands, in concluding their delimitation agreement on 31 March 1966, believed that their action, which was based on the equidistance method, was justified by existing international law. In my view it would not be equitable to take the position that since the Court has now held that the equidistance method has not been made obligatory by international law, any acts such as the granting of licences or concessions in the areas of the shelf claimed by Denmark or the Netherlands are to be treated as null and void ab initio. Rather, I think there should be applied the following conclusion of the Arbitral Tribunal which, in the Grisbadarna case, on 23 October 1909, decided the delimitation of a certain part of the maritime frontier between Norway and Sweden:

'... in the law of nations, it is a well established principle that it is necessary to refrain as far as possible from modifying the state of *80 things existing in fact and for a long time; ... that principle has a very particular application when private interests are in question, which, once disregarded, can not be preserved in an effective manner even by any sacrifices of the State, to which those interested belong ...' (Wilson, The Hague Arbitration Cases, 1915, pp. 111, 129).

The Parties to the instant case have in effect recently acted upon this same principle in respecting habitual fishing practices: Fisheries Convention of 9 March 1964, Articles 3 and 4, 581 United Nations Treaty Series, pages 58, 60. That Convention provides for a transitional period in which such established rights may be phased out, a provision which would not be suitable in dealing with drilling operations already undertaken. But it may also be noted that while in the Grisbadarna case the Tribunal spoke of a state of things 'existing ... for a long time', the Fisheries Convention considers as 'habitual', exploitations during a period of ten years. Considering the rapidity of the progress of exploitation in the petroleum industry in the North Sea, no restrictive limit should be placed on the elapsed time. The existence of actual drilling or exploitation in a certain place cannot be considered in the present circumstances to base a title on prescription, or on prior user or occupation; nor is it to be assimilated to 'historic title' which is mentioned as a 'special circumstances' in Article 12 of the 1958 Convention on the Territorial Sea. Nevertheless, the Parties might well bear in mind a provision in the 1897 treaty between Great Britain and Venezuela which provided that:

'In determining the boundary line, if territory of one party be found by the tribunal to have been at the date of this treaty in the occupation of the subjects or citizens of the other party, such effect shall be given to such occupation as reason, justice, the principles of international law, and the equities of the case shall, in the opinion of the tribunal, require.' (5 Moore, International Arbitrations, p. 5018.)

In any event, an agreed delimitation of the continental shelf by the three States in conformity with the Judgment of the Court, would not seem to impinge upon most of the areas which have already proved productive, but would involve an area for wildcatting. In the British sector, the major producing fields, e.g., Leman Bank and Indefatigable Bank, are located south of the 54th degree of latitude and between 2 degrees and 3 degrees E. The West Sole Field and the Hewett Field are even further to the west. All of these lie to the west of the median line between the Federal Republic and Great Britain. The widely heralded, but still unproved, Mobil gas strike in November 1968 in Netherlands Block P-6, is south of the 53rd parallel and therefore not in an area to which the Federal Republic could justly lay claim. The productive locations in the Norwegian sector *81 are north of the median line between the Federal Republic and Norway. The promising locations in the Danish sector could be involved in a new delimitation of the Federal Republic's portion, and to them the Grisbadarna principle might, in all equity, be applied. These would seem to be the only locations where exploitation has already produced promising results, within the limits of the sector delineated in the chart No. 6 introduced by the Agent of the Federal Republic on 4 November 1968. This sector is marked by the lines B-F and D-F on map No. 3 which is included in the Judgment of the Court. The Agent of the Federal Republic stated that 'the present claim of the Federal Republic of Germany is within the limits of such an equitable sector'. He stated that they accepted or acquiesced in the partial boundary lines agreed upon with the Netherlands on 1 December 1964 and with Denmark on 9 June 1965. Accordingly, any possible claim to the shelf north of the Danish line or west of the Netherlands line must be deemed to be relinquished. Moreover, the westernmost point of such a German triangular sector could not justifiably lie to the west of the true median line between the Federal Republic and the United Kingdom, or to the north of the true median line between the Federal Republic and Norway.

However, as the Judgment of the Court points out, there will be areas in which, in accordance with rules and principles indicated by the Court, two States may have equally justifiable claims, or, in other words, areas in which those claims will overlap. As the Court indicates, in such situations the solution may be found in an agreed division of the overlapping areas or in an agreement for joint exploitation 'the latter solution appearing particularly appropriate when it is a question of preserving the unity of a deposit' (paragraph 99).

Of the existing North Sea agreements relating to joint exploitation and mentioned in paragraph 97 of the Judgment of the Court, that between the Netherlands and the Federal Republic applying to the Ems Estuary is, as already noted, the most complete example of full co-operation in both exploitation and profit-sharing. The Agreement of 6 October 1965 between the Netherlands and the United Kingdom calls for consultation on the most effective exploitation of overlapping deposits and on 'the manner in which the costs and proceeds relating thereto shall be apportioned'. If the two Governments fail to reach agreement, the matter is to be referred, at the request of either one, to an arbitrator whose decision is binding. If licensees are involved, their proposals are to be considered by the Governments. The other agreements in general call for consultation with a view to agreement; in the United Kingdom- *82 Norway Agreement of 10 March 1965 there is again provision for consulting any licensees.

Outside the North Sea, the problem of a deposit extending across a boundary line is dealt with in a similar manner in the Agreement between Italy and Yugoslavia of 8 January 1968 concerning the delimitation of their respective areas of the intervening continental shelf in the Adriatic. In the Persian Gulf, there are examples of agreements for shared exploitation and shared profits at least in the Kuwait-Saudi Arabia Agreement of 7 July 1965, and the Bahrein-Saudi Arabia Agreement of 22 February 1958. An equal division of recoverable oil seems to have been provided for in a recently initialled agreement between Iran and Saudi Arabia which was mentioned by both sides in the oral proceedings.

Most of the North Sea agreements, and the agreement in the Adriatic, specifically relate to a deposit which extends across a boundary line, but the German-Dutch Agreement on the Ems Estuary and agreements in the Persian Gulf provide for joint exploitation or profit-sharing in areas of considerable extent where the national boundaries are undetermined or had been recently agreed upon subject to the provision for joint interests, as particularly in the case of the Partition of the Neutral Zone. Therefore, while, as the Court states, the principle of joint exploitation is particularly appropriate in cases involving the principle of the unity of a deposit, it may have a wider application in agreements reached by the Parties concerning the still undelimited but potentially overlapping areas of the continental shelf which have been in dispute.

Nor is it irrelevant to recall that the principle of international co- operation in the exploitation of a natural resource is well established in other international practice. The Federal Republic invoked the Helsinki Rules of the International Law Association concerning the sharing of the waters of a river basin traversing or bordering more than one State. Whether or not those Rules are the most accurate statement of the existing international law, as to which I express no opinion, there are numerous examples of co-operative use and of sharing of fluvial resources. The history of ocean fisheries is full of examples of co-operative agreements and the Preamble of the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas recites-

'... that the nature of the problems involved in the conservation of the living resources of the high seas is such that there is a clear necessity that they be solved, whenever possible, on the basis of international co- operation through the concerted action of all the States concerned ...'.

*83 A striking example of co-operation in the exploitation of a living resource is the Convention between the United States, Canada, Japan and the Soviet Union concerning the fur seals of the North Pacific Oceans; the United States and the Soviet Union harvest the pelts and then share the proceeds with Canada and Japan (cf., 314 United Nations Treaty Series, 106).

On land, Austria and Czechoslovakia have agreed upon co-operative exploitation of an oil pool which crosses under the frontier, and as far back as 1866 Bolivia and Chile agreed to divide the produce of the guano deposits in an area where they were defining the common boundary.

Moreover, 'Today, the municipal laws of most of the oil-producing nations of the world have passed through the earlier phases of non-regulation and limited co-relative rights and now contain specific provisions requiring co-operative development of a shared petroleum resource pool by all common interest- holders'. Many laws require the interested parties to 'adopt a unitized plan of development under which competition is now altogether eliminated and co- operation is required on co-ordinating such points as number and spacing of wells tapping the same common source'. (Onorato, 'Apportionment of an International Petroleum Deposit', 17 International and Comparative Law Quarterly, 85 (1958).) The British and Norwegian, and apparently the Dutch regulations all provide for ministerial action to avoid irrational operation when a deposit underlies more than one concession area. Co-operative executive action for a like purpose deals with comparable situations across state borders in the United States. (Morris, 'The North Sea Continental Shelf: Oil and Gas Legal Problems', 2 The International Lawyer, 191, 210 ff. (1968).)

Clearly, the principle of co-operation applies to the stage of exploration as well as to that of exploitation, and there is nothing to prevent the Parties in their negotiations, pending final delimitations, from agreeing upon, for example, joint licensing of a consortium which, under appropriate safeguards concerning future exploitation, might undertake the requisite wildcat operations.

I am quite cognizant of the fact that the general economy of the Court's Judgment did not conduce to the inclusion of the detailed, and largely factual, analysis which I have considered it appropriate to set forth in this separate opinion, but I believe that what is stated here, even if it is not considered to reveal an emerging rule of international law, may at least be regarded as an elaboration of the factors to be taken into account in the negotiations now to be undertaken by the Parties. Beyond *84 that, I hope it may contribute to further understanding of the principles of equity which, in the words of Judge Manley O. Hudson, are 'part of the international law which it [the Court] must apply'. (Diversion of Water from the Meuse, P.C.I.J., Series A/B, No. 70, 1937, p. 77.)

I wish to state also that I associate myself with the points made in the Declaration of Judge Sir Muhammad Zafrulla Khan.

Difficult as the problems are, it is fortunate that the three States which confront them are expressly committed to various methods of amicable settlement. They are aware of their right, under Article 60 of the Statute, to return to this Court for further guidance, or they may, if the need should arise, resort to the procedures of arbitration and conciliation set forth in the treaties of 1926 which are cited in the Special Agreements of 2 February 1967.

(Signed) Philip C. JESSUP.

*85 SEPARATE OPINION OF JUDGE PADILLA NERVO

I am in agreement with the Judgment of the Court, and particularly with its findings: that the use of the equidistance method of delimitation is not obligatory as between the Parties; that delimitation is to be effected by agreement in accordance with equitable principles in such a way as to leave to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory under the sea, without encroachment on the natural prolongation of the land territory of the other. I also concur in the statement of the Court regarding the factors that the Parties are to take into account in the course of the negotiations.