PERMANENT COURT OF INTERNATIONAL

JUSTICE.
FIRST (ORDINARY) SESSION.
PRESENT:
M. LODER, President,
M. WEISS, Vice-President,
. Lord FINLAY,
MM. NyHoLm,
| Moore,
DE BUSTAMANTE, ~
ALTAMIRA,
Opa,
ANZILOTTI, Judges,
MM. BEICHMANN,
NEGULESCO, Deputy-Judges.

ADVISORY OPINION No. I.

By a Resolution dated May 12th, 1922, the Council of the
League of Nations requested the Court, in accordance with
Article 14 of the Covenant, to give an advisory opinion on
the following question :

»Was the Workers’ Delegate for the Netherlands at the
Third Session of the International Labour Conference nomi-
nated im accordance with the provisions of paragraph 3 of
Article 389 of the Treaty of Versailles >”

The request for an advisory opinion on this question was
transmitted to the Court by a letter from the Secretary-
General of the League of Nations, by virtue of authority
received from the Council.

In conformity with Article 73 of the Rules of Court, notice
of the request was given to the Members of the League of
Nations through the Secretary-General of the League, to
the States mentioned in the Annex to the Covenant and to
the following organisations :

1922,
July 31st.
File: F.-a. TH,
Docket. 1: 2.
Ir

The International Association for the Legal Protection
of Workers ; oe,

the International Federation of - Christian. Trades
Unions, and :

the International. Federation of .Trades- ‘Unions.

: The request was also communicated. ‘to Germany: and
Hungary.

Finally, the Court decided to hear, at a public. sitting, the
representatives of any Government and international organi-
sation which, within a fixed period of time,expressed.a; desire
to be so heard. This decision was brought to. the:kñowledgé
of all the Members, States and organisations mentioned above,
and to the International Labour Office at Geneva.

The Court thus had at its disposal, when pronouncing: its
0 pinion, the following documents :.

1) A letter from the Director of the International La-
bour Office to the Secretary-General, dated March:17th,
1922, together with the Annexes accompanying this.letter.

2) A memorandum from the Netherlands Government, .
dated June r4th, 1922.

3) A memorandum from the Netherlands General Con-
federation of Trades Unions (Algemeen Nederlandsch
Vakverbond).

‘4) À telegram from the Swedish Government.
The Court also heard oral statements : LE ma
1) On behalf of the British Government, ... .:
2) on behalf of the Netherlands Government, :
3) on behalf of the International . ‘Federation of
Trades Unions,
-4) on behalf of the International Federation of
Christian Trades Unions, - |
5) on behalf of the International ‘Labour Office.
As a result of this information, the: following facts: are
established : |
The Minister. of Labour of the Netherlands, -. with. the
object of bringing about the agreement prescribed. in Article
389; paragraph 3 of the Treaty. of Versailles, invited the
13

five ‘following Netherlands Labour Organisations, which
he regarded as the most important, to take part in a con-
sultation with regard to the nomination of the workers’
delegate for the third Session of the International Labour
Conference :
1) The Netherlands Confederation of Trades Unions,
“numbering, in April 1921, 218,596 members ;
2) The Confederation of Catholic Trades Unions,
numbering, in April 1921, 155,642 members ;

3) The Confederation of Christian Trades Unions,
numbering in April 1921, 75,618 members ;

4) The Netherlands General Confederation of Trades
= Unions, numbering, in April 1921, 51,195 members ;

5) The National Labour Secretariat, numbering in

January Ist, 1921, 36,038 members.

The last of the five organisations mentioned above refused
to take part in the consultation. The consultation did not
lead to general agreement. The second, third and fourth
organisations mentioned agreed among themselves to propose
a candidate for nomination, while the Netherlands Confe-
deration of Trades Unions, on the other hand, considered
itself entitled to propose the workers’ delegate. |

The Netherlands workers’ delegate to the first and second
Sessions of the Labour Conference had been nominated from
the Netherlands Confederation of Trades Unions, either
without opposition on the part of the other organisations
or with their express consent. The latter organisations were,
on those occasions represented by technical advisers. The
Minister, however, when nominating the delegate for the
second session of the Conference, expressed the intention
of selecting a member of one of the other organisations as
delegate on the next occasion, whilst at the same time assu-
ring the Netherlands Confederation that it would be repre-
sented by an adviser.

The: Minister accordingly proposed, in. 1921, to choose
one of the technical advisers to the third session of the
Conference from amongst the members of the Netherlands
Confederation of Trades Unions, whilst appointing a can-
15

didate proposed by. the other organisations as Workers’
Delegate. The Netherlands Confederation, however, would
not fall in with this arrangement.

Thereupon, the Queen of the Netherlands, by a Royal
Decree, dated October 4th, 1921, appointed as Workers’
Delegate the common nominee of the three organisations.

On October 22nd, 1921, the Netherlands Confederation
_ of Trades Unions sent a letter to the International Labour
Office protesting against this nomination. The Confederation
maintained that the nomination constituted. a violation of
the provisions of Article 389 of the Treaty of Versailles,
because the selected candidate was not selected in agreement
with the Netherlands Confederation, which taken singly
had the largest number of members, and was, on this account,
the most’ representative organisation within the meaning
of the above mentioned Article.

The Conference, however, admitted the Workers’ Delegate
appointed by the Netherlands Government on the under-
standing that his admission should not be treated as a
precedent. At the same time it adopted the following reso-
lution :

:,The General Conference of the International Labour
Organisation invites the Governing Body of the Inter-
national Labour Office to request the Council of the
League of Nations to obtain, in accordance with Article

“14 of the Covenant of the League of Nations, from the

Permanent Court of International Justice an. opinion
as to the interpretation of Article 389 of the Treaty
of Versailles and as to the rules which should be observed
by the Members of the International Labour. Organi-
gation, in order to comply with the terms of this Article
in appointing non-Government Delegates and Advisers
‘to the Sessions of the General Conference.” °

. In’ pursuance of this resolution, and under instructions
from the Governing Body of the International Labour
Office, the Director of the Office requested the Council of
the League of Nations to obtain from the Court an opinion
upon ‘the question whether the Workers’ Delegate for the
17

Netherlands at the Third Session:of the International Labour
Conference was nominated. in accordance ‘with the provisions
of paragraph .3: of Article 389 .of the: Treaty « Of Versailles.

‘This request: was s favourably received by the. Council, who
decided to ask the Court for an advisory opinion upon thé above
mentioned question. +.

The Court gives its opinion as follows :

Since the Netherlands Workers’ Delegate to the Third
Session of the International Labour Conference was.admitted
by the Conference, the Court is of opinion that. the. sole
object of the question submitted to. it is to. obtain an inter-
pretation of the provisions of paragraph 3 of Article. 380.
Though, according to the form given to the question. by
the Council of’ the League of Nations, the method of proce-
dure adopted by the Government of the Netherlands for
the nomination of the Workers’ Delegate forms ‘the subject
of the question, this is solely in order to fix clearly the state
of facts to which the interpretation has application.

The passages material to be considered are the third and
seventh paragraphs of Article 389 : a

Paragraph 3. — ,,The Members undertake to. .nomi-
nate non-Government Delegates and advisers chosen in
agreement with the industrial organisations, if such
organisations exist, which are most representative of
employers or work-people, as the case may. be, i in their
respective countries.”

Paragraph 7. — ,,The credentials of. Delegates and
their advisers shall be subject to scrutiny by. the
Conference, which may, by two-thirds of the votes. cast
by the Delegates present, refuse to admit any Delegate
or adviser whom it deems not to have been nominated
in accordance. with this Article.” :

. The Netherlands. Confederation: of Trades : Unions is, on
the statements. before the Court, the most numerous. organisa-
tion of the kind. ‘in Holland. Poot ti
19

It would not necessarily follow that it is the most represen-
tative,. but for the purposes of this opinion it may be assumed
to be so. =

The General Conference of Representatives of the Members
of the International Labour Organisation is composed of four
representatives of each of the Members, of whom two are to
be Government Delegates, and the two others are to be dele-
gates representing respectively the employers and the work-
people of each of the Members. (See the first paragraph of
Article 3809). De ue

There is no limitation upon the freedom of choice by the
Government in appointing the two Government Delegates,
but with regard to the choice of the non-Government Delegates
a limitation is imposed. By the third paragraph of Article
389 of the Treaty, the Members undertake that, if industrial
organisations exist in the country, the Member shall nominate
non-Government. Delegates chosen in agreement with the
industrial organisations which are most representative of
employers or workpeople, as the case may be, in their respec-
tive countries.

The engagement contained in the third paragraph is not
a mere moral obligation. It is a part of the Treaty and consti-
tutes an obligation by which the Parties to the Treaty are
bound to one another.

The obligation is, that the persons nominated should have
been chosen in agreement with the organisations most repre-
sentative of employers or workpeople; as the.case may be.
There is no definition of the word ,,representative’’ in the
Treaty. The most representative organisations for this pur-
pose are, of course, those organisations which best represent
the employers and the workers respectively. What these
organisations are, is a question to be decided in the particu-
lar case, having regard to the circumstances in each particular
country at the time when the choice falls to be made. Numbers
are not the only test of the representative character of
the organisations, but they are an important factor ;
other things being equal, the most numerous. will be the most
representative. The Article throws upon the Government of
the State. the duty of deciding, on the data at its disposal,
27

what organisations are, in point of fact, the most representa-

tive: Its decision on this question may, however, be reviewed

under the seventh paragraph of this Article, and the Confe-
rence has the power, by a two-thirds majority, to refuse to:

admit any delegate whom it deems not to have been nomina-
ted in accordance with the Article. Such a refusal to admit
may be based on any grounds, either of fact or law, which

satisfy the Conference that the delegates have not been so-

nominated.

The Netherlands Government, whose good faith in this.

matter has not been contested, came to the conclusion that
three organisations, the Catholic Confederation, the Christian

Confederation and the General Confederation were collec-

tively more representative of the workpeople of the Nether-
lands than the Netherlands Confederation. The Government

accordingly nominated the delegate in agreement with.

those three organisations.

Could the Netherlands Government dispense with an
agreement with the Netherlands Confederation of Trades. .
Unions, and content itself with an agreement with the

three other organisations ?

In order to reply to this question, it must first of all. be
decided whether the agreement must be with only one

_ organisation.

It was ‘suggested that the third paragraph of Article:

389 .spoke of organisations in the plural, only because it

was dealing with the case of the employers as well as with.

the case of the workers, and that what was meant was. that
the Government, in nominating the employers’ delegate,
should proceed in agreement with the views of the one

organisation most important amongst those representative.

of the employers, and in choosing the workers’ delegate,
in accordance with the views of the one organisation most.
important amongst those representative of the workers.
The Court cannot accept this interpretation.
The view maintained by the Netherlands Confederation.
is not sufficiently supported by the text of the Article,
23

and it is at all events obvious that the ideas inspiring the
provisions of paragraph 3 clearly demonstrate that the only
possible construction that can be given to the word ,,organi-
ations’. is that. the plural refers: as well to employers’ as to
workers’ organisations.

In accordance with the terms of the first paragraph of
Article 389, the Workers’ Delegate represents all workers
‘belonging. to a particular Member. The only object of the
intervention of industrial organisations, in connection with
the selection of delegates and technical advisers, is to ensure;
as far as possible, that the Governments should nominate
persons whose opinions are in harmony with the opinions
of employers and workers respectively. If, therefore, in a
particular country there exist several industrial organisations
representing the working classes, the Government must :
take all of them into consideration when it is proceeding
‘to the nomination of the workers’ delegate and his technical
advisers. Only by acting in this way can the Government
succeed in choosing persons who, having regard to the
‘particular circumstances, will be able to represent at the
‘Conference the views of the working classes concerned.

The following exemple will show how widely the. view
‘maintained by the Netherlands Confederation of Trades
Unions. differs from the spirit of Article 389 of the Treaty
of Versailles. In a given country there are six organisations
of workers, one with II0,000 members, and five others
each with a membership of 100,000. According to the view
of the objectors to the nomination made in the present
case, the candidate proposed by the five last organisations
jointly would have to be discarded in favour of the candidate
of the first. One hundred and ten thousand workers would
‘dictate to five hundred thousand.

Such a result is enough to condemn the interpretation
which would make it possible, and unequivocal terms would
‘be required to compel its adoption. Now the wording of
the Article lends no support to such an interpretation.

It has been contended that it would be advantageous if
the delegate were to represent a single organisation and
25
not a group of organisations, whose policies may differ.
The Court confines itself to observing that no suggestion
to the effect that only one organisation should be represented
is anywhere to be found in the Treaty, which, on the con-
trary, expressly refers, in the first paragraph of Article 389,
to there presentation of the workers of each particular country.
The Netherlands Confederation of Trades Unions has
also contended that; even admitting that the text of para-
graph 3 of Article 389 purports to include several workers’
and employers’ organisations, the delegate was not nominated
in accordance with the provisions of the paragraph in ques-
tion, because an agreement with three organisations which
do not include the most numerous organisation, is not an
agreement with ‘He most representative organisations. The
meaning of this appears to be that if the plural construction
of the text is adopted, the agreement should be made with
all the most representative organisations. Even. admitting
that such an interpretation is reconcilable with the letter
of paragraph 3 of Article 389, it is clearly inadmissible. In
order to realise this, it will suffice to point out that the
construction in question would make it possible for one
single organisation, in opposition to the wishes of the great
majority of workers, to prevent the reaching of an agreement.
A construction which would have this result must be rejected.
The aim of each Government must, of course, be an
agreement with all the most representative organisations
of employers and workers, as the case may be ; that, however,
is only an ideal which it is extremely difficult to attain,
and which cannot, therefore, be considered as the normal —
_ case and that contemplated in. paragraph 3 of Article 380.
What is required of the Governments is that they should
do their best to effect an agreement, which, in the circum-
stances, may be regarded as the best for the purpose of
ensuring the representation of the workers of the country.
This ‘is precisely what the Netherlands’ Government did,
when, after failing to reach an agreement with all the indus-
trial organisations which it regarded as the most repre-
sentative, it nominated the Workers’ Delegate in agreement
with the organisations which, taken together, included a
27

majority of the organised workers of the country. This
does not mean that the fortuitous and temporary combi-
nation of three different organisations was treated by the
Netherlands Government as a single organisation which,
ipso facto, had become the most representative in place
of the Netherlands Confederation of Trades Unions. Such
a fiction is in no way necessary in order to explain and
justify the action taken by the Government.

FOR THESE REASONS:

The Court is of opinion that the Workers’ Delegate for
the Netherlands at the third. Session of the International
Labour Conference was nominated in accordance with the
provisions of paragraph 3 of Article 389 of the Treaty of
Versailles, and therefore answers im the affirmative the
question referred to it

Done in French and English, the French text being autho-
titative,

at the Peace Palace, the Hague, this thirty-first day -

of July, “ore thousand nine hundred and twenty-two,
in two copies, one of which is to be placed in the archives .
of the Court and the other to be forwarded to the Council
of the League of Nations.

(signed) LODER,
President.

(signed) A. HAMMARSKJOLD,
Registrar.


COUR INTERNATIONALE DE JUSTICE

ANNÉE 2001
2001
30 janvier
Rôle général
n° 117
30 janvier 2001

AFFAIRE DES ACTIVITÉS ARMÉES SUR LE TERRITOIRE DU CONGO

(RÉPUBLIQUE DÉMOCRATIQUE DU CONGO c. RWANDA)

ORDONNANCE

Le président de la Cour internationale de Justice,
Vu l’article 48 du Statut de la Cour et les paragraphes 2 et 3 de l’article 89 de son Règlement,

Vu la requête enregistrée au Greffe de la Cour le 23 juin 1999, par laquelle la République démocratique du
Congo a introduit une instance contre la République rwandaise au sujet d'un différend relatif à «des actes
d'agression armée perpétrés par le Rwanda sur le territoire de la République démocratique du Congo en violation
flagrante de la Charte des Nations Unies et de la Charte de l'Organisation de l'unité africaine»,

Vu l’ordonnance du 21 octobre 1999, par laquelle la Cour, compte tenu de l’accord intervenu entre les
Parties au sujet de la procédure, ainsi que de leurs vues quant aux délais à fixer, a décidé que les pièces de la
procédure écrite porteraient d’abord sur la question de la compétence de la Cour pour connaître de la requête et sur
celle de la recevabilité de cette dernière, et a fixé, respectivement, au 21 avril 2000 et au 23 octobre 2000 les dates
d'expiration des délais pour le dépôt du mémoire de la République rwandaise et du contre-mémoire de la
République démocratique du Congo sur ces questions,

Vu le mémoire de la République rwandaise déposé dans le délai ainsi fixé,

Vu l’ordonnance du 19 octobre 2000, par laquelle le président de la Cour a reporté au 23 janvier 2001 la
date d’expiration du délai pour le dépôt du contre-mémoire de la République démocratique du Congo;

Considérant que, par lettre du 15 janvier 2001, reçue au Greffe par télécopie le même jour, l’agent de la
République démocratique du Congo, se référant au paragraphe 2 de l’article 89 du Règlement, a fait savoir à la
Cour que le Gouvernement de la République démocratique du Congo souhaitait se désister de l’instance et a
précisé que «celui-ci se réserv[ait] la possibilité de faire valoir ultérieurement de nouveaux chefs de compétence
de la Cour»;

Considérant que copie de cette lettre a immédiatement été adressée au Gouvernement de la République
rwandaise, qui a été informé que le président de la Cour, agissant en application des paragraphes 2 et 3 de
l’article 89 du Règlement, avait fixé au 23 janvier 2001 la date d’expiration du délai dans lequel le Rwanda
pourrait déclarer s’il s’opposait au désistement;

Considérant que, par lettre du 22 janvier 2001, reçue au Greffe par télécopie le même jour, l’agent du
Rwanda a informé la Cour que son gouvernement acceptait le désistement de la République démocratique du
Congo de l’instance,
Prend acte du désistement de la République démocratique du Congo de l’instance introduite par la requête
enregistrée le 23 juin 1999;

Ordonne que l'affaire soit rayée du rôle.

Fait en français et en anglais, le texte français faisant foi, au Palais de la Paix, à La Haye, le trente janvier
deux mille un, en trois exemplaires, dont l'un restera déposé aux archives de la Cour et les autres seront transmis
respectivement au Gouvernement de la République démocratique du Congo et au Gouvernement de la République
rwandaise.

Le président,
(Signé)Gilbert Guillaume.

Le greffier,
(Signé)Philippe Couvreur.


DISSENTING OPINION OF JUDGE SORENSEN

To my great regret I find myself unable to concur in the decision of
the Court, and J wish to avail myself of the right under Article 57 of the
Statute to state the reasons for my dissent.

On certain points I agree with the Court. I do not think that the
equidistance principle—even subject to modification in special circum-
stances—is inherent in the legal concept of the continental shelf or part
of that concept by necessary implication.

I also agree that the Federal Republic of Germany has not by her
conduct assumed the obligations under the Geneva Convention on the
Continental Shelf. As F shall indicate later, the conduct of the Federal
Republic may be considered relevant in another context, but I agree
that the Convention is not opposable to her on a contractual or quasi-
contractual basis.

Ï do find, however, that the Convention, and in particular Article 6
thereof, is binding upon the Federal Republic on a different basis. In
order to substantiate this opinion I wish first to make some observations
on the Convention in general, and then afterwards to examine whether
the conclusions reached hold good with respect to Article 6 in particular.

*
* *

It is generally recognized that the rules set forth in a treaty or conven-
tion may become binding upon a non-contracting State as customary
rules of international law or as rules which have otherwise been generally
accepted as legally binding international norms. It is against this particular
background that regard should be had to the history of the drafting and
adoption of the Convention, to the subsequent attitudes of States, and
to the relation of its provisions to the rules of international law in other,
but connected, fields.

In that respect, however, I take a less narrow view than the Court
as to the conditions for attributing such effect to the rules set forth in
a convention. I agree, of course, that one should not lightly reach the
conclusion that a convention is binding upon a non-contracting State.
But I find it necessary to take account of the fact—to which the Court
does not give specific weight—that the Geneva Convention belongs to
a particular category of multilateral conventions, namely those which
result from the work of the United Nations in the field of codification

242
242 CONTINENTAL SHELF (DISS. OP. SORENSEN)

and progressive development of international Jaw, under Article 13 of
the Charter.

Over a number of years, and following the procedure laid down in
its Statute, the International Law Commission had elaborated a com-
prehensive set of draft articles on the law of the sea, including some on
the continental shelf. The Commission submitted the draft articles to
the General Assembly in the report of its eighth session in 1956. By
resolution 1105 (XI) the General Assembly decided to convene a con-
ference of plenipotentiaries to examine the law of the sea on the basis
of this draft, and all States Members of the United Nations or the
specialized agencies were invited to participate. The conference met in
Geneva in the early months of 1958 and adopted four conventions on
the law of the sea, one of them being the Convention on the Continental
Shelf, which were opened for signature on 28 April 1958.

In assessing the legal effects of a convention adopted in such circum-
stances, the distinction between the two notions of “codification” and
“progressive development” of international law may be taken as the
point of departure. According to Article 15 of the Statute of the Inter-
national Law Commission, the term “‘codification”’ is used in that Statute
to mean “the more precise formulation and systematization of rules of
international jaw in fields where there already has been extensive State
practice, precedent and doctrine”. The term “progressive development”,
on the other hand, is used to mean “the preparation of draft conventions
on subjects which have not yet been regulated by international law or
in regard to which the law has not yet been sufficiently developed in the
practice of States”.

There is no doubt that the distinction between these two categories is
sound in theory and relevant in practice. There are treaty provisions
which simply formulate rules of international law which have already
been generally accepted as part of international customary law, and it
is beyond dispute that the rules embodied and formulated in such
provisions are applicable to all States, whether or not they are parties
to the treaty. On the other hand, it is equally clear that there are treaty
provisions which are intended to modify the existing legal situation,
whether they change the content of existing rules or regulate matters
which have not previously been regulated by international law. Rules
set forth in such treaty provisions are neither binding upon nor can be
invoked by non-contracting States.

It has come to be generally recognized, however, that this distinction
between codification and progressive development may be difficult to
apply rigorously to the facts of international legal relations. Although
theoretically clear and distinguishable, the two notions tend in practice
to overlap or to leave between them an intermediate area in which it
is not possible to indicate precisely where codification ends and pro-
gressive development begins. The very act of formulating or restating

243
243 CONTINENTAL SHELF (DISS. OP. SORENSEN)

an existing customary rule may have the effect of defining its contents
more precisely and removing such doubts as may have existed as to its
exact scope or the modalities of its application. The opportunity may
also be taken of adapting the rule to contemporary conditions, whether
factual or legal, in the international community. On the other hand,
a treaty_purporting to create new law may be based on a certain amount
of State practice and doctrinal opinion which has not yet crystallized
into customary law. It may start, not from tabula rasa, but from a cus-
tomary rule in statu nascendi.

The International Law Commission itself has recognized that the
distinction between the process of codification and that of progressive
development, as defined in its Statute, gives rise to practical and theoreti-
cal difficulties. The report of its eighth (1956) session contains, in the
introduction to the chapter on the law of the sea—which includes the
draft articles on the continental shelf—, the following statement:

“Tn preparing its rules on the law of the sea, the Commission
has become convinced that, in this domain at any rate, the distinc-
tion established in the statute between these two activities can hardly
be maintained. Not only may there be wide differences of opinion
as to whether a subject is already ‘sufficiently developed in practice’,
but also several of the provisions adopted by the Commission,
based on a ‘recognized principle of international law’, have been
framed in such a way as to place them in the “progressive develop-
ment’ category. Although it tried at first to specify which Articles
fell into one and which into the other category, the Commission
has had to abandon the attempt, as several do not wholly belong to
either.” (LL.C., VIIT, Report, para. 26).

Considerations such as these are borne out by an examination of the
process by which rules of customary international law are created.
Article 38 of the Statute of the Court refers to international custom
“as evidence of a general practice accepted as law”. According to classic
doctrine such practice must have been pursued over a certain length
of time. There have even been those who have maintained the neces-
sity of “immemorial usage”. In its previous jurisprudence, however,
the Court does not seem to have laid down strict requirements as to the
duration of the usage or practice which may be accepted as law. In
particular, it does not seem to have drawn any conclusion in this respect
from the ordinary meaning of the word “‘custom’’ when used in other
contexts. In the Asy/um case the Court only required of the Colombian
Government that it should prove—

244
244 CONTINENTAL SHELF (DISS. OP. SORENSEN)

“that the rule invoked by it is in accordance with a constant and
uniform usage practised by the States in question, and that this
usage is the expression of a right appertaining to the State granting
asylum and a duty incumbent on the territorial State”. (/.C_/. Reports
1950, p. 276; also quoted in the case concerning U.S. Nationals in
Morocco, 1.C.J. Reports 1952, p. 200).

The possibility has thus been reserved of recognizing the rapid emer-
gence cf a new rule of customary law based on the recent practice of
States. This is particularly important in view of the extremely dynamic
process of evolution in which the international community is engaged
at the present stage of history. Whether the mainspring of this evolution
is to be found in the development of ideas, in social and economic factors,
or in new technology, it is characteristic of our time that new problems
and circumstances incessantly arise and imperatively call for legal regula-
tion. In situations of this nature, a convention adopted as part of the
combined process of codification and progressive development of inter-
national law may well constitute, or come to constitute the decisive
evidence of generally accepted new rules of international law. The fact
that it does not purport simply to be declaratory of existing customary
law ts immaterial in this context. The convention may serve as an authori-
tative guide for the practice of States faced with the relevant new legal
problems, and its provisions thus become the nucleus around which a
new set of generally recognized legal rules may crystallize. The word
“custom”, with its traditional time connotation, may not even be an
adequate expression for the purpose of describing this particular source
of law.

This is not merely a question of terminology. If the provisions of a
given convention are recognized as generally accepted rules of law, this
is likely to have an important bearing upon any problem of interpretation
which may arise. In the absence of a convention of this nature, any
question as to the exact scope and implications of a customary rule
must be answered on the basis of a detailed analysis of the State practice
out of which the customary rule has emerged. Jf, on the other hand,
the provisions of the convention serve as evidence of generally accepted
rules of law, it is legitimate, or even necessary, to have recourse to
ordinary principles of treaty interpretation, including, if the circum-
stances so require, an examination of travaux préparatoires.

Turning now to the Convention on the Continental Shelf, it is hardly
necessary to recall that the legal problems with which it deals have
arisen out of the rapidly increasing demand for sources of energy and
the development of new techniques permitting the extraction of resources
from the subsoil of submarine areas. As problems of international law,
the problems relating to the exploitation of the natural resources of the

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continental shelf are of recent origin. Although the seeds of the con-
temporary doctrine of the continental shelf may be found in earlier
legal writings, it is only during the last quarter of a century that technical
developments have added practical significance to the problems. The
point of departure for the evolution of the legal doctrine relating to
the continental shelf was the proclamation issued by the President of
the United States on 28 September 1945.

On the basis of early State practice and the comments made by govern-
ments, the International Law Commission hammered out the doctrine
of the continental shelf in legal provisions which were subsequently
discussed and adopted, with certain modifications, by the Geneva Con-
ference in 1958. As far as the main elements are concerned, the provisions
of the Convention circumscribed the doctrine on a number of points.
The outer limits of the continental shelf were defined, although according
to alternative criteria, one of which was the indeterminate criterion of
exploitability. The rights of the coastal! State over the shelf area were
characterized as ‘‘sovereign”™ rights—which means that they include the
ordinary legislative, executive and judicial competence of the State on
a territorial basis—but only for limited purposes, namely the exploration
and exploitation of natural resources. These rights were declared to be
exclusive, and it was further laid down that they did not depend on
occupation or any express proclamation. The term “natural resources”
was defined in great detail. In addition, the Convention imposed certain
duties on the coastal State for the purpose of safeguarding the interest
of other States in the use of the high seas, and provisions were included
for delimitation vis-a-vis neighbouring States !.

It is difficult to express any definite opinion as to the exact legal status
of the continental shelf in general international law prior to the Geneva
Conference. It may be argued that customary international law had by
then already developed to the point of authorizing a coastal State to
exercise some measure of sovereign rights over the adjacent area of the
continental shelf. But it can hardly be asserted that the doctrine of the
continental shelf, as formulated and circumscribed in considerable detail,
first by the International Law Commission in its draft of 1956, and then
by the Geneva Conference in 1958, was nothing more than a restatement
of then existing rules of customary international law. The provisions of
the Convention were not simply declaratory of already accepted inter-
national law in the matter.

This being so, the question remains whether the Convention may
nevertheless now be taken as evidence of generally accepted rules of
international law. In the Judgment, the Court has applied certain mini-
mum conditions for recognizing that a treaty provision attains the

1 [| use the expression ‘“‘neighbouring States” in a wide and general sense, covering
all States adjacent to the same continental shelf, whether or not they have a common
Jand frontier.

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246 CONTINENTAL SHELF (DISS. OP. SORENSEN)

character of a generally accepted rule of customary law. In a general
way I agree that these conditions reflect the elements or factors to be
considered, except that I also believe, as indicated above, that it should
be considered as a relevant element that a convention has been adopted
in the process of codification and development of international law under
the United Nations Charter. I do not, however, find the rather schematic
approach adopted by the Court entirely satisfactory. The conditions
should not, in my view, be considered as alternative conditions which
could be examined and rejected one by one. The proper approach, in
my opinion, is to examine the relevant elements as interlocking and
mutually interdependent parts of a general process.

Approaching the problems of the present cases in this manner, | think
that the decisive considerations may be summarized as follows. The
adoption of the Geneva Convention on the Continental Shelf was a
very significant element in the process of creating new rules of inter-
national law in a field which urgently required legal regulation. The
Convention has been ratified or acceded to by a quite considerable
number of States, and there is no reason to believe that the flow of
ratifications has ceased. It is significant that the States which have
become parties to the Convention are fairly representative of all geo-
graphical regions of the world and of different economic and social
systems. Not only the contracting parties, but also other States, have
adapted their action and attitudes so as to conform to the Convention.
No State which has exercised sovereign rights over its continental shelf
in conformity with the provisions of the Convention has been met with
protests by other States. True, there have been certain controversies on
such questions as the understanding of the term “natural resources”
and the delimitation of shelf areas between the States concerned, a
problem which will be examined further below. In general, however,
such controversies have revolved on the interpretation and application
of the provisions of the Convention, rather than the question whether
those provisions embody generally applicable rules of international law.

I do not find it necessary to go into the question of the opinio juris.
This is a problem of legal doctrine which may cause great difficulties in
international adjudication. In view of the manner in which international
relations are conducted, there may be numerous cases in which it is
practically impossible for one government to produce conclusive evi-
dence of the motives which have prompted the action and policy of
other governments. Without going into all aspects of the doctrinal de-
bate on this issue, { wish only to cite the following passage by one of
the most qualified commentators on the jurisprudence of the Court.
Examining the conditions of the opinio necessitatis juris Sir Hersch Lauter-
pacht writes:

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247 CONTINENTAL SHELF (DISS. OP. SORENSEN)

“Unless judicial activity is to result in reducing the legal signifi-
cance of the most potent source of rules of international law,
namely, the conduct of States, it would appear that the accurate
principle on the subject consists in regarding all uniform conduct
of Governments (or, in appropriate cases, abstention therefrom) as
evidencing the opinio necessitatis juris except when it is shown that
the conduct in question was not accompanied by any such intention.”
(Sir Hersch Lauterpacht: The Development of International Law by
the International Court, London 1958, p. 380.)

Applying these considerations to the circumstances of the present
cases, ] think that the practice of States referred to above may be taken
as sufficient evidence of the existence of any necessary opinio juris.

In my opinion, the conclusion may therefore safely be drawn that as
a result of a continuous process over a quarter of a century, the rules
embodied in the Geneva Convention on the Continental Shelf have
now attained the status of generally accepted rules of international law.

That being so, it is nevertheless necessary to examine in particular
the attitude of the Federal Republic of Germany with regard to the
Convention. In the Fisheries case the Court said that the ten-mile rule
would in any event ‘appear to be inapplicable as against Norway inas-
much as she has always opposed any attempt to apply it to the Norwegian
coast” (LC.J. Reports 1951, p. 131). Similarly, it might be argued in
the present cases that the Convention on the Continental Shelf would
be inapplicable as against the Federal Republic, if she had consistently
refused to recognize it as an expression of generally accepted rules of
international law and had objected to its applicability as against her.
But far from adopting such an attitude, the Federal Republic has gone
quite a long way towards recognizing the Convention. It is part of the
whole picture, though not decisive in itself, that the Federal Republic
signed the Convention in 1958, immediately before the time-limit for
signature under Article 8. More significant is the fact that the Federal
Republic has relied on the Convention for the purpose of asserting her
own rights in the continental shelf. The Proclamation of the Federal
Government, dated 20 January 1964, contained the following passage:

“In order to eliminate legal uncertainties that might arise during
the present situation until the Geneva Convention on the Continental
Shelf comes into operation and is ratified by the Federal Republic
of Germany, the Federal Government deems it desirable already
now to make the following statement:

1. In view of the development of general international law as
expressed in recent State practice and in particular in the signing
of the Geneva Convention on the Continental Shelf, the Federal

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248 CONTINENTAL SHELF (DISS. OP. SORENSEN)

Government regards the exploration and exploitation of the
natural resources of the seabed and subsoil ... as the exclusive
sovereign right of the Federal Republic of Germany ...”

Leaving aside for the moment the particular question of the delimitation
of the German area of the continental shelf vis-a-vis other States, to
which I shall revert later, this proclamation may be taken as conclusive
evidence of the attitude adopted by the Federal Republic towards the
Convention. This attitude is relevant, not so much in the context of
the traditional legal concepts of recognition, acquiescence or estoppel,
as in the context of the general process of creating international legal
rules of universal applicability. At a decisive stage of this formative
process, an interested State, which was not a party to the Convention,
formally recorded its view that the Convention was an expression of
generally applicable international law. This view being perfectly well
founded, that State is not now in a position to escape the authority of
the Convention.

It has been asserted that the possibility, made available by Article 12,
of entering reservations to certain articles of the Convention, makes it
difficult to understand the articles in question as embodying generally
accepted rules of international law. I intend to revert to this question
below, with particular regard to Article 6. As a more general point I
wish to state that, in my view, the faculty of making reservations to a
treaty provision has no necessary connection with the question whether
or not the provision can be considered as expressing a generally recognized
rule of law. To substantiate this opinion it may be sufficient to point
out that a number of reservations have been made to provisions of the
Convention on the High Seas, although this Convention, according to
its preamble, is “generally declaratory of established principles of inter-
national law”. Some of these reservations have been objected to by other
contracting States, while other reservations have been tacitly accepted.
The acceptance, whether tacit or express, of a reservation made by a
contracting party does not have the effect of depriving the Convention
as a whole, or the relevant article in particular, of its declaratory char-
acter. It only has the effect of establishing a special contractual relationship
between the parties concerned within the general framework of the
customary law embodied in the Convention. Provided the customary
rule does not belong to the category of jus cogens, a special contractual
relationship of this nature is not invalid as such. Consequently, there
is no incompatibility between the faculty of making reservations to
certain articles of the Convention on the Continental Shelf and the
recognition of that Convention or the particular articles as an expression
of generally accepted rules of international law.

As a special proviso to the preceding general observations | only wish

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249 CONTINENTAL SHELF (DISS. OP, SORENSEN)

to add that the recognition of the Convention as an expression of generally
accepted international Jaw should not prejudge an issue which has arisen
since the convention was adopted in 1958. The test of exploitability for
determining the outer limits of the continental shelf should not be taken
to imply that the status of the seabed and subsoil of the ocean depths
could be governed by the Convention. The legal concept of the continental
shelf cannot reasonably be understood, even in its widest connotation, as
extending far beyond the geological concept. The problem does not arise
in the present cases, and | therefore do not find it necessary to pursue it
further.

*
* *

Once it has been concluded that the provisions of the Convention
on the Continental Shelf must be considered as generally accepted rules
of international law and that they are therefore applicable to the Federal
Republic even as a non-contracting State, it is necessary to look more
particularly at Article 6, which is the relevant article for the purpose
of the present cases. Although the provisions of the Convention in
general are considered to be binding on the Federal Republic, there
might be special grounds for holding that this general conclusion does
not apply to a particular article.

In examining this question, it must surely be held, by way of a starting-
point, that Article 6 can hardly be separated from the rest of the Conven-
tion without upsetting the balance of the legal régime instituted by the
Convention, or breaking the unity and coherence of that régime. For
once it is recognized that the coastal State has sovereign rights for
certain purposes over the continental shelf adjacent to its coasts, a
question of delimitation in relation to the shelf areas of neighbouring
States necessarily arises—save only in the rare instances of island States
which do not share their continental shelf with other States. A convention
on the legal régime of the continental shelf would be incomplete if it
left this question of delimitation open. Consequently, there would have
to be strong reasons for not considering Article 6 as generally binding
along with the rest of the Convention. To put it otherwise, there is a
strong presumption in favour of considering the rules on the delimitation
of the shelf areas as having a similar legal effect to that of the rules on
the extent and nature of the rights of the coastal State.

Far from being invalidated, this presumption is upheld and confirmed
by other elements. The rules set forth in Article 6 conform to the rules
which are generally applied for the delimitation of maritime areas between
neighbouring States. The 1958 Geneva Conference faced this problem
in three different contexts, in addition to that of the continental shelf,
namely the territorial sea, the contiguous zone and the special fishery
conservation areas. For all three situations it adopted identical solutions,

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250 CONTINENTAL SHELF (DISS. OP. SORENSEN)

as formulated in Article 12 of the Convention on the Territorial Sea
and the Contiguous Zone. These solutions are substantially the same as
that of Article 6 of the Continental Shelf Convention. The European
Fisheries Convention of 9 March 1964 adopted the same solution for
the delimitation of exclusive fishing zones as between neighbouring
States.

Furthermore, the practice of States since 1958 in matters concerning
the delimitation of shelf areas conforms to the rules of Article 6, and
there is no difference between the practice of States parties to the Conven-
tion and that of non-contracting States. The main rule of the Article,
the principle of equidistance or the median line, has been followed in
several bilateral agreements between neighbouring States. It is true that
some of these bilateral agreements deviate from the geometrically exact
line of equidistance. In some cases the agreement has the effect of
“straightening out” the line. In other cases it has taken account of
“special circumstances” within the meaning of Article 6. However that
may be, such agreements are perfectly compatible with the provisions
of Article 6. Likewise, unilateral delimitations proclaimed by States,
even before becoming parties to the Convention, have been based on
the equidistance principle in conformity with Article 6. Although there
are areas in certain parts of the world where the delimitation is still
the subject of controversy, there seems to be no case where the delimita-
tion, whether undertaken bilaterally or unilaterally, cannot be considered
as having taken place within the framework of Article 6.

It has been argued by the Federal Government—and the Court has
accepted that line of argument—-that certain instances of State practice
are itrelevant for the purpose of the present cases, since they relate only
to paragraph | of Article 6, namely the delimitation of shelf areas
between opposite coasts, and not to the delimitation as between adjacent
States under paragraph 2 of Article 6. In my opinion, this argument is
not decisive. In order to substantiate this opinion a closer analysis of
the provisions of Article 6 is called for.

The geographical terms used in the two paragraphs of Article 6 are
not quite precise. Paragraph | refers to two or more States ‘whose coasts
are opposite each other” while paragraph 2 refers to ‘‘adjacent States”.
These two provisions thus seem to envisage two distinct types or models
of geographical configuration. The realities of geography, however, do
not always conform to such abstract models. The coastlines of adjacent
States (i.e., States having a common land frontier) may confront each
other as opposite coasts in their further course from the point where
the common land frontier meets the sea. Thus the same coastline may
fall under the provisions of both paragraphs. Neither expressly nor
implicitly does Article 6 provide any exact and rational criterion for
deciding when, and to what extent, two coastlines are adjacent and when
they are opposite.

The difficulties of drawing a clear-cut distinction between the two types

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251 CONTINENTAL SHELF (DISS. OP. SORENSEN)

of geographical situations were, in my opinion, well illustrated during
the oral proceedings by the production of a sketch map (marked D)
showing the area between Denmark and Germany in the westernmost
part of the Baltic Sea.

As a matter of legal principle, the distinction between ‘‘median line”
(paragraph 1) and ‘‘equidistance” (paragraph 2) seems to me to be
fictitious, and the juridico-technical terminology of the two paragraphs
therefore inadequate. In both paragraphs the decisive element is that
the line in question shall be drawn in such a manner that each point of
it is equidistant from the nearest points of the baselines from which the
breadth of the territorial sea of each State is measured. The geometrical
technique which is used for the drawing of the line is likewise identical
in the two cases.

The proceedings of the Geneva Conference seem to confirm that the
legal principle is the same in the two cases. In its draft articles the
International Law Commission had applied the distinction between
“opposite coasts’’ and “adjacent States” to the delimitation of the con-
tinental shelf as well as of the territorial sea. Article 12 of the draft
dealt with the delimitation of the territorial sea in straits and off other
opposite coasts, while Article 14 dealt with the delimitation of the territo-
rial sea of two adjacent States. At the Conference, however, it was
proposed by Norway that the two rules be merged into one, and a new
consolidated rule was eventually adopted as Article 12 of the Convention
on the Territorial Sea and the Contiguous Zone. In support of the
proposal it was argued that—

“the problems dealt with in the two articles [sci/. Articles 12 and
14 of the I.L.C. draft] were so closely interrelated as in some cases
to be practically indistinguishable—for instance where two States
had a common Jand frontier which met the sea at the head of a
deep bay” (Official Records, Vol. UI, p. 188),

and also that—

“The merging of Articles 12 and 14 was merely a matter of drafting;
the substance of the two articles was so similar that they would
be better combined” (ibid., p. 190).

These arguments met with the general approval of the First Committee
of the Conference, dealing with the territorial sea and contiguous zone.
In the Fourth Committee, discussing the continental shelf, the delegate
of Norway drew attention to the fact that the problems dealt with in
Article 72 of the draft (which later became Article 6 of the Convention)
were very similar to those covered by other articles, particularly Articles
12 and 14, with regard to which the Norwegian delegation had submitted
proposals. Any drafting changes in the texts of Articles 12, 14 and 66

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252 CONTINENTAL SHELF (DISS. OP. SORENSEN)

(concerning the contiguous zone, eventually Article 24 of the Convention
on the Territorial Sea and the Contiguous Zone) should therefore be
taken into consideration by the drafting committee (Official Records,
Vol. VI, p. 92). This suggestion, however, was not followed up, although
nobody spoke against it. Consequently, the differences which now exist
between the provisions of the two Conventions on this point seem to
be due to insufficient co-ordination in the drafting, rather than different
views on the principles involved. So far as Article 6 of the Convention
on the Continental Shelf is concerned, there is no difference of principle
between paragraphs | and 2. A more adequate formulation of that
principle would have been a negative formulation, on the model of
Article 12 of the Convention on the Territorial Sea, to the effect that
‘no State is entitled to extend its area of the continental shelf beyond
a line, every point of which is equidistant from [etc.]” (it may be pointed
out in passing that the aforesaid Article 12 employs the term ‘‘median
line” with respect to both opposite and adjacent coasts).

A formula such as the one just quoted would also be the only adequate
formula for dealing with complex situations, for instance where three
or more States are facing each other as opposite States. It seems obvious
that under the median line principle no State should be authorized to
extend its area into the area to be divided by two other States, and that
the median line between States A and B must stop where it intersects
with the median line between B and C, although this does not follow
from the actual wording of Article 6.

Although an international judge cannot rewrite the Convention on
the Continental Shelf, the preceding explanations seem to warrant the
conclusion that paragraphs | and 2 of Article 6 should be interpreted as
expressions of a single legal principle, and that no clear-cut distinction
can be made between the practice of States under one or the other of
the two paragraphs.

In order to cover all aspects of the practice of States relating to Article
6, it is also necessary to consider the reservations which some States
have made to that Article. Such reservations are not inadmissible under
Article 12 of the Convention, and their legal effects must therefore be
determined on the merits of each particular case. Some of the reservations
have been objected to by other States, but it is not for the Court in the
present cases to express an opinion on the legal effects of such objections.
The reservations made, and the objections entered against them, are
relevant only in so far as their total effect might be to disprove the
thesis that Article 6, as part of the Convention, has been accepted as
generally binding international law. In my opinion, however, this is not
the case. First, only four out of 39 States parties to the Convention have
entered reservations to Article 6. Secondly, having examined each of
the reservations in detail, | find it safe to consider them not as aiming
at excluding the régime of Article 6 as such, but at placing on record

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253 CONTINENTAL SHELF (DISS. OP. SORENSEN)

that the existence or non-existence of special circumstances is claimed
within the meaning of the express terms of that Article.

In general, the reservations made to Article 6 do not seem to invalidate
the conclusion that the practice of States is in conformity with the
provisions of Article 6.

Now if the Federal Republic, in her relations with other North Sea
States, had consistently denied the applicability of Article 6, paragraph 2,
to the delimitation of her shelf area, the question might have arisen of
whether the provisions of that paragraph were opposable to the Federal
Republic in spite of her objections. Like the more general problem
examined above relating to her attitude to the Convention in general,
this is a problem concerning the attitude of the Federal Republic at the
formative stage of a new rule of generally applicable international law.
Far from having denied the applicability of Article 6, however, the
Federal Republic has on one occasion actually referred to it as being
applicable. In the Joint Minutes, signed in Bonn on 4 August 1964 by
the respective leaders of a German and of a Netherlands delegation
(Memorial, Federal Republic/Netheriands, p. 104), it is stated that the
treaty which the two delegations would propose to their Governments
to conclude concerning the lateral delimitation of the continental shelf
near the coast would constitute “‘an agreement in accordance with the
first sentence of paragraph 2 of Article 6 of the Geneva Convention”.
The same Joint Minutes embodied a statement to the effect that the
Federal Government was seeking to bring about a conference of North
Sea States—

“with a view to arriving at an appropriate division of the continental
shelf situated in the middle of the North Sea in accordance with
the first sentence of paragraph (1) and the first sentence of paragraph
(2) of Article 6 of the Geneva Convention”.

Consequently, there is nothing to substantiate a conclusion that
Article 6, and in particular paragraph 2 thereof, has not become part
of generally accepted international law on an equal footing with the
other provisions of the Convention.

* * *

If, then, Article 6, paragraph 2, is held to be applicable, the next
question is: which of the specific rules set forth in that paragraph should
be applied in the present case?

The first sentence provides that the boundary shall be determined
by agreement between the States concerned. In the present cases, the
Parties have negotiated with a view to reaching agreement. These nego-
tiations have not been entirely unsuccessful, since partial agreements

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254 CONTINENTAL SHELF (DISS. OP. SORENSEN)

concerning the delimitation near the coast were concluded. No agreement
could be reached on delimitation farther out to sea. Each of the two
Special Agreements states in the preamble that the existing disagreement
“could not be settled by detailed negotiations’. On the other hand,
Article 1, paragraph 2, or each Special Agreement provides that the
Governments concerned ‘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”. In their pleadings
before the Court the Parties have confirmed that at present the possibilities
of negotiation have been exhausted, and that no agreement will be
possible for so long as the Court has not decided what principles and
rules are applicable. Ih my opinion, the Court cannot but take cognizance
of this declaration.

Consequently, the next question is whether the principle of equidis-
tance should be applied, or whether there are special circumstances
which justify another boundary line. A natural construction of the
wording of the provision, in particular the words ‘‘unless another bound-
ary line is justified . . .”, seems to indicate that the principle of equidis-
tance is intended to be the main rule, and the drawing of another boundary
line an exception to this main rule. This general understanding of the
provision seems to be confirmed by the travaux préparatoires, including
in particular the 1953 report of the Committee of Experts and the reports
of the International Law Commission in 1953 and 1956. The problem,
however, of the degree to which the “special circumstances rule” should
be considered as an exception to the main rule, and of exactly how
“exceptional” it should be, is largely identical with the problem as to
whether the words “special circumstances” should be given a wide or
a narrow construction, and as to the nature of the “special circumstances”
which could justify a departure from the principle of equidistance.

This question is not only crucial to the settlement of the dispute
between the Parties, if, as I believe, Article 6 is applicable, but also the
most difficult question to answer. The ordinary and natural meaning
of the words in the context of Article 6 does not give any guidance.
If one then turns to the travaux préparatoires, some guidance is found
in the debates and in the reports of the International Law Commission.
Mention is made of “‘any exceptional configuration of the coast, as well
as the presence of islands or of navigable channels” (/.L.C. Report, 1953,
Commentary on Article 82, and Report, 1956, Commentary on Article 72).
At the Geneva Conference, one of the members of the 1953 Committee
of Experts, Commander Kennedy, speaking this time as a representative
of the United Kingdom, mentioned as examples of special circumstances
“the presence of a small or large island in the area to be apportioned”,
such islands to be “treated on their merits’, of “the possession by one
of the two States concerned of special mineral exploitation rights or
fishery rights, or the presence of a navigable channel” (Official Records,

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255 CONTINENTAL SHELF (DISS. OP. SORENSEN)

Vol. VI, p. 93). As an element of the travaux préparatoires the explana-
tions of votes given by delegates at the Conference when the Article was
adopted may also be taken into consideration. The representative of
the Federal Republic stated that he had voted in favour of the Article
“subject to an interpretation of the words ‘special circumstances’ as
meaning that any exceptional delimitation of territorial waters would
affect the delimitation of the continental shelf” (ibid., p. 98). Although
a declaration of this kind cannot be held against the Federal Republic
as justifying inferences a contrario, the statement is, nevertheless, signifi-
cant as evidence of the types of special circumstance which were in the
minds of delegates to the Conference. Incidentally, the statement made
by the German delegate takes account of the situations obtaining in the
Germano-Netherlands and Germano-Danish border areas, and the two
subsequent partial agreements of 1964 and 1965 may be taken to recog-
nize the existence of ‘‘special circumstances” in these two situations.
Nowhere in the travaux préparatoires, however, is any reference to be
found to geographical situations resembling the bend in the general
direction of the German North Sea coast.

It is true that the special circumstances clause was meant to apply in
cases where the equidistance principle would lead to inequitable or
unreasonable results. To indicate what is inequitable or unreasonable,
however, is hardly possible in the absence of any standard of evaluation.
The Convention itself does not offer any such standard, nor do the
travaux préparatoires. There is no basis in international law for main-
taining that two or three neighbouring States should have shelf areas
of approximately the same size measured in square kilometres. The idea
of justitia distributiva, however meritorious it may be as a moral or
political principle, has not become part of international law, as will be
seen from a cursory glance at the established international order with
its patent factual inequalities between States. Nor is there any basis for
maintaining that the respective areas of the continental shelf should
be proportionate to the length of the coasts of the States concerned,
or to any such uncertain and hitherto unknown concept as their “coastal
fronts”. In itself, the continental shelf area which appertains to the
Federal Republic under the equidistance principle is not insignificant: it
covers an area of 23,000 square kilometres (more than two-thirds of
the total land area of the Netherlands, and more than half of that of
Denmark), and its farthest point out to sea is at a distance of some
170 kilometres, or nearly 100 nautical miles, from the nearest points of
the German coast.

The fact that this area would have been larger, had it not been for
the combined effect of the Netherlands-German and Germano-Danish
equidistance lines, is immaterial in this context. This combined effect
is the product of the bend of the German coast as a geographical factor,
and of the location of the Federal Republic’s land frontiers with her
neighbours, as a legal and political factor. Had the Netherlands-German

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256 CONTINENTAL SHELF (DISS. OP. S@RENSEN)

frontier lain farther to the west, and the Germano-Danish frontier farther
to the north, the two equidistance lines would have met farther out to
sea, or might not have met at all, so that the ‘‘cutting-off" effect would
have been reduced or entirely removed. But the Court has to base its
findings on the geographical and political factors as they are, and not
upon comparisons with hypothetical situations. The politico-geographical
circumstances of coastal States all over the world, including those around
the North Sea, are extremely different and have the effect of producing
great inequalities as to the areas of continental shelf which each State
could claim under the principle of equidistance. The special circumstances
clauses of Article 6 cannot reasonably be understood as being designed
to rectify any such inequalities caused by elementary geographical factors
in combination with the location of political frontiers.

If anything, it might conceivably be argued that the areas to which
sovereign rights attach for the purpose of exploring and exploiting the
natural resources of the continental shelf should be delimited in such a
way as to apportion these resources equitably ameng the States concerned,
taking into account the structure and trends of their respective national
economies. The Convention, however, does not give any support for
a solution based on such considerations, and the Parties to the present
cases have not been able to provide relevant information as to the location
of the natural resources, if any, of the areas in question.

One final consideration appears to be relevant. The delimitation of
maritime areas between neighbouring States is a matter which may
quite often cause disagreement and give rise to international disputes.
In accordance with the function of law in the international community,
the rules of international law should be so framed and construed as to
reduce such causes of disagreement and dispute to a minimum. The
clearer the rule, and the more automatic its application, the less the
seed of discord is sown. This is particularly important in the absence
of provision for the compulsory adjudication of disputes between the
parties. The Convention on the Continental Shelf does not include any
clause concerning the adjudication of boundary disputes, as envisaged
at a certain stage of the work of the International Law Commission.
Several of the States parties to the Convention are not parties to the
Optional Protocol concerning the Compulsory Settlement of Disputes,
adopted by the Geneva Conference, or to any other instrument providing
for compulsory adjudication. In such circumstances, if the Court is faced
with alternative ways of interpreting a treaty provision, it would seem
not only legitimate but also advisable to give preference to the inter-
pretation which will have the effect of circumscribing more narrowly the
possible area of dispute. As far as Article 6 of the Convention on the
Continental Shelf is concerned, there is no doubt that the principle of
equidistance is one whose application is simple and almost mechanical,

257
257 CONTINENTAL SHELF (DISS. OP. SORENSEN)

while the special circumstances clause, because of its very vagueness,
it fraught with potential conflict. Consequently, a narrow interpretation
of the term ‘‘special circumstances” should be preferred.

Similar considerations are even more pertinent to the fundamental
question, whether or not the provisions of the Convention, and in
particular Article 6, should be recognized as generally accepted inter-
national law. If this question is answered in the negative, and the delimi-
tation is to be governed by a principle of equity only, considerable legal
uncertainty will ensue, and that in a field where legal certainty is in the
interest not only of the international community in general, but also—on
balance—of the States directly concerned.

For the reasons stated above, my opinion is that the question set
forth in the Special Agreements should have been answered as follows:

1. Article 6, paragraph 2, of the Convention on the Continental Shelf
of 29 April 1958 is 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 lines already
agreed upon.

2. Within the meaning of Article 6, paragraph 2, no specialcircumstances
exist which justify another boundary than that resulting from the
application of the principle of equidistance.

(Signed) Max SGRENSEN.

258


                            COUR INTERNATIONALE DE JUSTICE

                               RECUEIL DES ARRÊTS,
                        AVIS CONSULTATIFS ET ORDONNANCES

                    DÉLIMITATION MARITIME DANS LA MER
                     DES CARAÏBES ET L’OCÉAN PACIFIQUE
                            (COSTA RICA c. NICARAGUA)

                   FRONTIÈRE TERRESTRE DANS LA PARTIE
                     SEPTENTRIONALE D’ISLA PORTILLOS
                            (COSTA RICA c. NICARAGUA)

                           ORDONNANCE DU 2 FÉVRIER 2017

                                   2017
                            INTERNATIONAL COURT OF JUSTICE

                             REPORTS OF JUDGMENTS,
                          ADVISORY OPINIONS AND ORDERS

                      MARITIME DELIMITATION IN THE
                   CARIBBEAN SEA AND THE PACIFIC OCEAN
                            (COSTA RICA v. NICARAGUA)

                   LAND BOUNDARY IN THE NORTHERN PART
                            OF ISLA PORTILLOS
                            (COSTA RICA v. NICARAGUA)

                             ORDER OF 2 FEBRUARY 2017

3 CIJ1117.indb 1                                             9/03/18 12:12

                          Mode oﬃciel de citation :
               Délimitation maritime dans la mer des Caraïbes
   et l’océan Pacifique (Costa Rica c. Nicaragua) — Frontière terrestre
  dans la partie septentrionale d’Isla Portillos (Costa Rica c. Nicaragua),
           ordonnance du 2 février 2017, C.I.J. Recueil 2017, p. 91

                              Oﬃcial citation :
                 Maritime Delimitation in the Caribbean Sea
    and the Pacific Ocean (Costa Rica v. Nicaragua) — Land Boundary
      in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua),
             Order of 2 February 2017, I.C.J. Reports 2017, p. 91

                                              No de vente:
ISSN 0074-4441
ISBN 978-92-1-157315-2
                                              Sales number   1117

                                                     2 FÉVRIER 2017

                                                     ORDONNANCE

                    DÉLIMITATION MARITIME DANS LA MER
                     DES CARAÏBES ET L’OCÉAN PACIFIQUE
                         (COSTA RICA c. NICARAGUA)

                   FRONTIÈRE TERRESTRE DANS LA PARTIE
                     SEPTENTRIONALE D’ISLA PORTILLOS
                         (COSTA RICA c. NICARAGUA)

                      MARITIME DELIMITATION IN THE
                   CARIBBEAN SEA AND THE PACIFIC OCEAN
                         (COSTA RICA v. NICARAGUA)

                   LAND BOUNDARY IN THE NORTHERN PART
                            OF ISLA PORTILLOS
                         (COSTA RICA v. NICARAGUA)

                                                 2 FEBRUARY 2017

                                                       ORDER

3 CIJ1117.indb 3                                                      9/03/18 12:12

                 91

                                 COUR INTERNATIONALE DE JUSTICE

                                                 ANNÉE 2017
     2017
   2 février
Rôle général                                     2 février 2017
nos 157 et 165

                     DÉLIMITATION MARITIME DANS LA MER
                      DES CARAÏBES ET L’OCÉAN PACIFIQUE
                                      (COSTA RICA c. NICARAGUA)

                     FRONTIÈRE TERRESTRE DANS LA PARTIE
                       SEPTENTRIONALE D’ISLA PORTILLOS
                                      (COSTA RICA c. NICARAGUA)

                                               ORDONNANCE

                 Présents : M. Abraham, président ; M. Yusuf, vice-président ;
                            MM. Owada, Tomka, Cançado Trindade, Greenwood,
                            Mmes Xue, Donoghue, M. Gaja, Mme Sebutinde,
                            MM. Robinson, Gevorgian, juges ; M. Couvreur, greffier.

                     La Cour internationale de Justice,
                     Ainsi composée,
                     Après délibéré en chambre du conseil,
                     Vu l’article 48 de son Statut et les articles 31 et 47 de son Règlement,

                     Rend l’ordonnance suivante :
                    Considérant que :
                    1. Par requête déposée au Greﬀe de la Cour le 25 février 2014, la Répu-
                 blique du Costa Rica (ci-après, le « Costa Rica ») a introduit une instance
                 contre la République du Nicaragua (ci-après, le « Nicaragua ») au sujet

                 4

92 délimitation maritime — frontière terrestre (ord. 2 II 2017)

d’un diﬀérend relatif « à l’établissement, entre les deux Etats, dans la mer
des Caraïbes et l’océan Paciﬁque, de frontières maritimes uniques délimi-
tant l’ensemble de leurs espaces maritimes respectifs, sur la base des règles
et principes applicables du droit international » (ci-après, « l’aﬀaire rela-
tive à la Délimitation maritime »).
   2. Conformément au paragraphe 2 de l’article 40 du Statut, le greﬃer
a immédiatement communiqué au Gouvernement du Nicaragua une
copie signée de la requête ; en application du paragraphe 3 du même
article, tous les Etats admis à ester devant la Cour ont été informés du
dépôt de la requête.
   3. Par ordonnance en date du 1er avril 2014, la Cour a ﬁxé au
3 février 2015 et au 8 décembre 2015, respectivement, les dates d’expira-
tion des délais pour le dépôt d’un mémoire par le Costa Rica et d’un
contre-mémoire par le Nicaragua. Le mémoire et le contre-mémoire ont
été déposés dans les délais ainsi prescrits.
   4. Lors d’une réunion que le président a tenue avec les représentants
des Parties le 28 janvier 2016, celles-ci se sont accordées pour considérer
que le dépôt d’une réplique et d’une duplique en l’espèce n’était pas
nécessaire.
   5. En application du paragraphe 1 de l’article 67 du Règlement, le gref-
ﬁer a, par des lettres en date du 13 avril 2016, informé les Parties que la
Cour envisageait, conformément aux articles 48 et 50 de son Statut, de
faire procéder à une expertise dans le cadre de laquelle un ou plusieurs
experts seraient chargés de rassembler, en se rendant sur place, l’ensemble
des éléments factuels relatifs à l’état de la côte entre le point situé sur la
rive droite du ﬂeuve San Juan à son embouchure et le point de la côte le
plus proche de Punta de Castilla, tels que ces deux points peuvent être
identiﬁés à l’heure actuelle.
   6. Les Parties entendues, la Cour a, par une ordonnance en date du
31 mai 2016, décidé qu’il serait procédé à une expertise, conformément
aux articles 48 et 50 de son Statut. Elle a indiqué que cette expertise serait
conﬁée à deux experts indépendants, désignés par ordonnance du pré-
sident de la Cour, lesquels devraient se rendre sur place aﬁn de donner
leur avis à la Cour en ce qui concerne l’état de la côte entre les points
invoqués respectivement par le Costa Rica et le Nicaragua, dans leurs
écritures, comme étant le point de départ de la frontière maritime dans la
mer des Caraïbes.
   7. Après avoir consulté les Parties, le président de la Cour a, par
ordonnance en date du 16 juin 2016, désigné les deux experts.
   8. Une première visite sur les lieux s’est déroulée du 4 au 9 dé-
cembre 2016.
   9. Le 16 janvier 2017, le Costa Rica a introduit une instance contre le
Nicaragua au sujet d’un diﬀérend concernant « l’emplacement précis de la
frontière terrestre séparant la bande de sable de la lagune de Los Portil-
los/Harbor Head d’Isla Portillos » ainsi que « l’établissement, par le Nica-
ragua, d’un campement militaire sur la plage d’Isla Portillos » (ci-après,
« l’aﬀaire relative à Isla Portillos »).

5

93 délimitation maritime — frontière terrestre (ord. 2 II 2017)

   10. Dans sa requête, le Costa Rica a prié la Cour de joindre, en appli-
cation de l’article 47 de son Règlement, la nouvelle instance à celle rela-
tive à la Délimitation maritime.
   11. Conformément au paragraphe 2 de l’article 40 du Statut, le greﬃer
a immédiatement communiqué au Gouvernement du Nicaragua une
copie signée de ladite requête ; en application du paragraphe 3 du même
article, tous les Etats admis à ester devant la Cour ont été informés du
dépôt de la requête.
   12. Lors d’une réunion que le président a tenue avec les représentants
des Parties le 26 janvier 2017, celles-ci ont été invitées à faire connaître les
vues de leurs Gouvernements, d’une part, sur la question des délais pour
le dépôt des pièces de procédure en l’aﬀaire relative à Isla Portillos et,
d’autre part, sur l’opportunité de joindre les instances dans cette aﬀaire et
dans l’aﬀaire relative à la Délimitation maritime.
   13. Le Costa Rica a déclaré qu’il maintenait sa demande de jonction,
indiquant en particulier qu’il était nécessaire que la Cour règle l’ensemble
des questions opposant les Parties en ce qui concerne la partie septentrio-
nale d’Isla Portillos. Il a en conséquence préconisé l’octroi de délais brefs
pour le dépôt des pièces dans la nouvelle instance aﬁn de permettre à la
Cour de connaître des deux aﬀaires dans sa composition actuelle. Le
Costa Rica a, à cet eﬀet, proposé que chacune des Parties se voie accorder
un délai de quarante-cinq jours ou, au maximum, de deux mois pour la
préparation de ses écritures. Il a par ailleurs suggéré que le rapport des
experts en l’aﬀaire relative à la Délimitation maritime ne soit communiqué
aux Parties qu’au terme du dépôt des pièces écrites en l’aﬀaire relative à
Isla Portillos.
   14. Le Nicaragua a pour sa part indiqué considérer que les conclusions
des experts en l’aﬀaire relative à la Délimitation maritime seront essentielles
aux ﬁns de l’aﬀaire relative à Isla Portillos, et qu’il ne serait dès lors pas
logique que le Costa Rica dépose son mémoire dans la seconde aﬀaire avant
d’avoir eu connaissance dudit rapport. Le Nicaragua a ajouté que ce n’est
qu’une fois en possession du rapport des experts et du mémoire du
Costa Rica qu’il sera en mesure de se prononcer sur l’opportunité d’une
jonction et d’apprécier le temps nécessaire à la préparation de son contre-
mémoire. Pour l’heure, il estime, en tout état de cause, que chacune des
Parties devrait disposer d’un délai de six mois pour préparer ses écritures.

                                     *   *
  15. A la lumière des renseignements obtenus par le président confor-
mément à l’article 31 du Règlement, la Cour considère que, compte tenu
de la nature de l’aﬀaire, les Parties devront disposer chacune d’une
période d’un mois et demi, à compter du dépôt de la requête, pour prépa-
rer leurs écritures respectives en l’aﬀaire relative à Isla Portillos.

                                     *   *
6

94 délimitation maritime — frontière terrestre (ord. 2 II 2017)

   16. S’agissant de la question de la jonction des instances dans les
aﬀaires relatives à la Délimitation maritime et à Isla Portillos, la Cour
rappelle que, aux termes de l’article 47 de son Règlement, « [l]a Cour peut
à tout moment ordonner que les instances dans deux ou plusieurs aﬀaires
soient jointes ». Cette disposition laisse à la Cour une large marge de dis-
crétion. Lorsqu’elle a exercé son pouvoir de joindre des instances, la
Cour, ou sa devancière, la Cour permanente de Justice internationale, l’a
néanmoins fait dans des circonstances où une telle jonction était conforme
non seulement au principe de bonne administration de la justice, mais
aussi aux impératifs d’économie judiciaire (voir par exemple : Statut juri-
dique du territoire du sud-est du Groënland, ordonnance du 2 août 1932,
C.P.J.I. série A/B no 48, p. 268 ; Plateau continental de la mer du Nord
(République fédérale d’Allemagne/Danemark ; République fédérale d’Alle-
magne/Pays-Bas), ordonnance du 26 avril 1968, C.I.J. Recueil 1968, p. 9 ;
Certaines activités menées par le Nicaragua dans la région frontalière
(Costa Rica c. Nicaragua), jonction d’instances, ordonnance du 17 avril
2013, C.I.J. Recueil 2013, p. 170, par. 18 ; Construction d’une route au
Costa Rica le long du fleuve San Juan (Nicaragua c. Costa Rica), jonction
d’instances, ordonnance du 17 avril 2013, C.I.J. Recueil 2013, p. 187,
par. 12). Comme la Cour a eu l’occasion de le rappeler, toute décision en
ce sens doit être prise à la lumière des spéciﬁcités de chaque cas d’espèce.
   17. Dans le cas présent, la Cour estime que, compte tenu de la nature
des demandes formulées par le Costa Rica en l’aﬀaire d’Isla Portillos et
du lien étroit que celles-ci entretiennent avec certains aspects du diﬀérend
en l’aﬀaire de la Délimitation maritime, les instances dans les deux aﬀaires
doivent être jointes. Une telle jonction permettra à la Cour d’examiner
simultanément la totalité des points en litige entre les Parties, qui sont liés
les uns aux autres, et notamment toutes questions de droit ou de fait com-
munes aux deux diﬀérends qui lui ont été soumis.

                                        *
                                    *       *

    18. Par ces motifs,
    La Cour,
   1) Fixe comme suit les dates d’expiration des délais pour le dépôt des
pièces de la procédure écrite dans l’aﬀaire relative à la Frontière terrestre
dans la partie septentrionale d’Isla Portillos (Costa Rica c. Nicaragua) :
   Pour le mémoire de la République du Costa Rica, le 2 mars 2017 ;
   Pour le contre-mémoire de la République du Nicaragua, le 18 avril 2017 ;
   2) Décide de joindre les instances dans les aﬀaires relatives à la Délimi-
tation maritime dans la mer des Caraïbes et l’océan Pacifique (Costa Rica
c. Nicaragua) et à la Frontière terrestre dans la partie septentrionale
d’Isla Portillos (Costa Rica c. Nicaragua) ;

7

95 délimitation maritime — frontière terrestre (ord. 2 II 2017)

    3) Réserve la suite de la procédure.

   Fait en français et en anglais, le texte français faisant foi, au Palais de
la Paix, à La Haye, le deux février deux mille dix-sept, en trois exem-
plaires, dont l’un restera déposé aux archives de la Cour et les autres
seront transmis respectivement au Gouvernement de la République du
Costa Rica et au Gouvernement de la République du Nicaragua.

                                                       Le président,
                                             (Signé) Ronny Abraham.
                                                         Le greﬃer,
                                            (Signé) Philippe Couvreur.

8