Case Summary
| Citation | North Sea Continental Shelf Cases ICJ Reports, 1969, p.3 |
| Keywords | Germany, Denmark and Netherlands, equidistance principle |
| Facts | The dispute was related to the delimitation of the continental shelf between the Federal Republic of Germany and Denmark on the one hand and between the Federal Republic of Germany and Netherlands on the other. Both Denmark and Netherlands argued that delimitation of continental shelf should be done based on “equidistance-special circumstances principle” as laid down in Article 6(2) of the Geneva Convention of Continental Shelf of 1958. Both were parties to Geneva Convention whereas Germany signed the Convention but never ratified it. Germany argued that delimitation should be done in such a way that every State gets a “just and equitable share” of the available continental shelf in proportion to the length of its sea frontage. Alternatively, the Germany claimed that if equidistance method were held applicable, the configuration of the German North Sea coast constituted special circumstances such as to justify a departure from that method of delimitation in this particular case. Denmark and Netherlands argued 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 crystallised in Article 6 of the Convention, nevertheless such a rule has come into being since the Convention, partially because of its own impact, partially on the basis of subsequent State practice, and that this rule, being now a rule of customary international law binding on all States, including Germany, should be declared applicable to the delimitation of the boundaries between the parties’ respective continental shelf areas in the North Sea. |
| Issues | 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? |
| Contentions | |
| Law Points | 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 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. The Court accordingly concluded 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 rule; and that State practice up-to-date has equally been insufficient for the purpose. In the present case, the number of ratifications and accessions so far was hardly sufficient. As regards the time element, all the passage of only a short period of time was not necessarily a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, it was indispensable that State practice during that period including that of States whose interests were specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked and should have occurred in such a way as to show a general recognition that a rule of law was involved. |
| Judgement | The Court consequently concluded that the Geneva Convention was not in its origins orinception declaratory of a mandatory rule of customary international law enjoining theuse of equidistance principle, its subsequent effect had not been constitutive of such arule, and State practice up to date had equally been insufficient for the purpose. |
| Ratio Decidendi & Case Authority |
Full Case Details
(Whether Article 6 of the Geneva Convention on Continental Shelf customary rule?
Principles applicable in the delimitation of continental shelf)
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 as between the Parties of the areas of the continental shelf in the
North Sea which appertain to each of them”.
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 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.
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.
(Federal Republic of Germany did not ratify the 1958 Geneva Convention on Continental
Shelf and hence Article 6 was held not applicable to it. Denmark and the Netherlands’
therefore, plead on the customary status of Article 6 to make it binding on the Federal
Republic).
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
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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. …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 as 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 1aw 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 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 juridical character of the coastal State’s entitlement; the
nature of the rights exercisable; the kind of natural resources to which these 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
preceding 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
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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 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 far-reaching, 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
exactly what falls to be settled through the process of delimitation, and this is the sphere of
Article 6, not Article 2.
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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
only 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 rights 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 customary
rule of international 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 circumstance basis.
71. In so far as this contention is concerned (Denmark and the Netherlands contention
that equi-distance rule on its own impact and subsequent State practice has attained customary
status) 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 conventional or
contractual in its origin, has since passed into the general corpus of international law, and is
now accepted as such by the mphasi 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 should, at all
events potentially, be of a fundamentally norm creating 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
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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 nonratification 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.
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/NorwayDenmark-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
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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 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, 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
mphasi 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 mphasi juris sive mphasizeds. The
States concerned must therefore feel that they are conforming to what amounts to a legal
obligation. The frequency, or even habitua1 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
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they felt 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 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.
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.
84. 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 Parties have expressly reserved to themselves.
85. It emerges from the history of the development of the legal régime of the continental
shelf 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, have from the beginning reflected the mphasi 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 delimitation of adjacent
continent shelves-that is to say, rules upon States for all de1imitations; -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 régime of the continental shelf in
this field, namely:
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(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 forma1 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;
(6) 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;
© 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.
87. 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.
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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 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
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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 al1 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 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 régime. 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 mphasized 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 1 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.
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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 al1
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 régime 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 régime 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 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. 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
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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.
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 régime of
the continental shelf have been examined for that purpose only. This régime 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 oversystematize a pragmatic construct the developments of which have occurred within a
relatively short space of time.
The principle and rules of international law applicable to the delimitation as between the
Parties are as follows:
1. Delimitation is to be effected by agreement in accordance with
equidistance principles, and taking into 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 decided on a regime
of joint jurisdiction, user, or exploitation for the zones which overlap or any part of
them.
In the course of negotiations, the factors to be taken into account are to include:
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 ascertained, 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 above 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.
