DISSENTING OPINION OF JUDGE LACHS

A disagreement has arisen concerning the delimitation of the continen-
tal shelf in the North Sea as between the Federal Republic of Germany
and the Kingdom of the Netherlands. The two States have succeeded in
reaching agreement only on the delimitation of the coastal continental
shelf and concluded on | December 1964 a convention to this effect.
They were, however, unable to agree on the further course of the bound-
ary, negotiations to that end having failed.

A similar situation has arisen between the Kingdom of Denmark and
the Federal Republic. They 100 concluded, on 9 June 1965, a convention
concerning the delimitation of the coastal continental shelf. The question
of the further boundary line has remained unresolved, as negotiations
to this end have proved unsuccessful.

Thus important differences on the subject subsist and in order to
solve them the three States, by two Special Agreements, have requested
the Court to decide: ‘‘what principles and rules of international law are
applicable to the delimitation as between the Parties of the areas of the
continental shelf in the North Sea which appertain to each of them beyond
the partial boundary” determined by the Conventions of | December
1964 and 9 June 1965 respectively. They have further declared that they
shall delimit the continental shelf “by agreement in pursuance of the
decision requested from the International Court of Justice” (Article 1,
paragraph 2, of both Special Agreements).

il

In the light of these requests the Court is obviously faced with a
question of law. To that extent, its task is clear. To discharge it two
methodological approaches are possible: it can address itself directly
to the question of the law “applicable” “as between the Parties” or,
alternatively, ascertain in general if there exist any “principles and rules
of international law’ on the subject, and, in the affirmative, decide as
to their applicability in the cases before it.

The latter approach may be justified in cases where the law is of very
recent origin and doubts may exist as to the real status of a principle
or rule. This is, indeed, the situation in the cases before the Court.

The need for a legal regulation of the exploration and exploitation of

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219 CONTINENTAL SHELF (DISS. OP. LACHS)

the continental shelf has only recently become imperative as a result of
the great strides of technology, which have enabled man to reach out
for many of the treasures so jealously guarded by nature. Thus the law
on the continental shelf is one of the newest chapters of international
law.

The point of departure for any analysis of the issues involved is the
Geneva Convention of 1958 on the Continental Shelf. The question of
its applicability—and in particular of the applicability of its Article 6,
paragraph 2, dealing with determination of the boundary of the con-
tinental shelf adjacent to the territories of two adjacent States—has
dominated the whole proceedings in the present cases: it was raised in
the written pleadings and again in the course of the oral proceedings.
Thus it seems only logical to deal with this issue first. Moreover, the
need to seek solutions outside Article 6, paragraph 2, or outside the
Convention as a whole, will arise only if the reply as to their applicability
is negative.

The substance and meaning of Article 6, paragraph 2, are determined
by the interrelation of its three elements: agreement—equidistance—
special circumstances. To consider them in that order:

(a) The paragraph specifies that in the first place it is by agreement,
that the boundary is to be determined. This does not mean, however,
that it imposes any more far-reaching obligation than the duty to nego-
tiate of which certain other instruments speak and which, as is well-
known, constitutes one of the general principles of contemporary inter-
national law. Thus this provision may not be construed as imposing an
absolute obligation to reach agreement, but rather as emphasizing the
obligation to make every possible effort in that direction: the parties
concerned are to endeavour to resolve their differences round a conference
table.

It is, then, essential that they open negotiations. The substance of the
agreement is left to their discretion; they are perfectly free to decide
on its basis and constituents. They may agree to apply one of the other
two elements of Article 6, or find another basis for determining the
boundary. The law on the subject does not impose any restrictions upon
them except those that are essential in all negotiations; in other words,
all that is required is that the negotiations be conducted in good faith.
Hence the parties can move within the general limits imposed by law.

(b) The second element of Article 6, paragraph 2, is that of equidis-
tance. The words “‘shall be determined” are used twice in that paragraph:
once in relation to the agreement between the parties, and a second time
providing for the application of equidistance ‘tin the absence of agree-
ment”. This latter term obviously refers to two situations: either the
failure of negotiations or the fact that none took place. For one can
very well imagine that two neighbouring States may not even enter into
negotiations; there may be compelling reasons which prevent both, or

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220 CONTINENTAL SHELF (DISS. OP. LACHS)

one of them, from doing so. Should the boundary in such event remain
uncertain, with all the resulting inconveniences, or even risks? There is
no juridical basis for such an inference. Equidistance is also applicable
if there are no “‘special circumstances” justifying another solution.

Not only the text but also the discussion that took place in the Inter-
national Law Commission should dispel all doubts as to the true bearing
of the notion of equidistance. When the Special Rapporteur suggested
the addition of the words ‘‘as a general rule”, one of the members of
the Commission (Lauterpacht) opposed it as “it was at least arguable
that they deprived the rule of its legal character”. He argued that “No
judge or arbitrator could interpret a text so worded, because any party
to a dispute could always argue that its case did not fall within the general
rule, but formed an exception to it”. It was then that the words ‘unless
special circumstances should justify ... [another] delimitation” were
introduced. They were linked with the deletion of the words “‘as a rule”.
And the chairman made the point quite clear by stating that the amend-
ment “‘stressed the exceptions rather than the rule” (Yearbook of the
International Law Commission, 1953, Vol. KE, pp. 128, 131, 133). The
intention of the drafters is further elucidated in the commentary of the
Commission:

“The rule thus proposed is subject to such modifications as may
be agreed upon by the parties. Moreover, while ... the rule of
equidistance is the general rule, it is subject to modification in cases
in which another boundary line is justified by special circum-
stances.” (Yearbook of the International Law Commission, 1953,
Vol. IT, p. 216, para. 82.)

The decision taken at the Geneva Conference is based on the conclu-
sions of the International Law Commission. The rejection of the Vene-
zuelan amendment (‘the boundary of the continental shelf appertaining
to such States shall be determined by agreement between them or by
other means recognized by international law’’) demonstrated the deter-
mination of States to accept a clear and definitive rule; no uncertainty
was to be allowed on the subject. In no way did it affect the basic concept
of what was to become Article 6 of the Convention.

(ce) In the logical order [ ought now to deal with the third element
of Article 6, paragraph 2, namely “special circumstances”. However,
this being an exception to the general rule, I shall dwell on its applicability
at a later stage.

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221 CONTINENTAL SHELF (DISS. OP. LACHS)

These clarifications seem to go to the essence of the matter. Their
purpose, as suggested above, is to elicit the true significance of the notion
of equidistance within the framework of Article 6, while placing the
latter in its true perspective and establishing its proper relationship to
Articles 1 and 2 of the Convention.

For, in cases “where the same continental shelf is adjacent to the
territories of two adjacent States’, thus where a boundary problem
arises, the exercise of the rights defined in Article 2 is conditioned (if
not wholly, certainly in some degree) by the application of Article 6,
paragraph 2. One may therefore view it as laying down the rules con-
cerning the implementation of Article 2 in specific circumstances. To
this extent it has an inescapable impact on Article 2.

Having analysed what to my mind is the real meaning and scope of
the notion of equidistance, I do not propose to dwell on its virtues or
advantages. It may suffice to say that it is practical and concrete. It thus
qualifies as a rule, and J shall henceforth so term it. It is admitted that
no other principle or rule of delimitation partakes of the same facility
and convenience of application and certainty of results. At this stage
I would merely add that by the entry into force of the Convention on the
Continental Shelf the equidistance rule has become part of the treaty
law on the subject.

Il

Only two States (the Kingdom of Denmark and the Kingdom of the
Netherlands) appearing before the Court in the present cases are parties
to the Convention. The Federal Republic, not having ratified it, is not
contractually bound by it. In fact no claim in that sense has been ad-
vanced.

The question which arises, therefore, is whether the rules expressed
in Article 6, paragraph 2, of the Geneva Convention of 1958 on the
Continental Shelf have acquired a wider status, so as to be applicable
to States not parties to the Convention, in particular whether they were
susceptible of becoming and have in fact become part of general inter-
national law.

Both these contentions have been advanced, and both have been de-
nied. To substantiate these denials the history of the Article has been in-
voked. Speciai stress is laid on the facts that hesitations accompanied the
adoption of the equidistance rule, that other possible solutions were dis-
cussed and that the equidistance rule was adopted only at a later stage,
on the basis of non-legal considerations.

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222 CONTINENTAL SHELF (DISS. OP. LACHS)

True as these facts may be, they are not conclusive. They constitute
but part of the history, above referred to, of how Article 6, paragraph 2,
came into being. Doubts and hesitations did exist. But is the same not
true of many new rules of law? Even in science, a successful experiment
is frequently greeted with suspicion. Some laws of nature, self-evident
today, were once viewed as heresy. How much more is this true in the
sphere of man-made law, and in particular when a new chapter of law
is brought into being?

It is all to the credit of the International Law Commission that it
discussed the issues involved in Article 6 at such length before adopting
its final text. Meanwhile the comments of governments were invited and
received. In fact it took three years (from 1953 to 1956) until that text
was finalized and submitted to the General Assembly of the United
Nations. It passed through all the stages contemplated by the Statute
of the International Law Commission for its work in implementation
of Article 13, paragraph 1 (a), of the Charter. At the Geneva Conference
itself it was the subject of further discussion—before being finally voted
into the Convention.

Even if it be conceded that the Committee of Experts, in which the
equidistance rule originated, was guided by considerations of practical
convenience and cartography, this can have no effect on its legal validity.
There are scores of rules of law in the formation of which non-legal
factors have played an important part. Whenever law is confronted with
facts of nature or technology, its solutions must rely on criteria derived
from them. For law is intended to resolve problems posed by such facts
and it is herein that the link between law and the realities of life is
manifest. It is not legal theory which provides answers to such problems;
all it does is to select and adapt the one which best serves its purposes,
and integrate it within the framework of law. This, for example, is how
medium filum aquae has been recognized as the boundary rule for non-
navigable rivers, and the rule of the “‘talweg” for navigable rivers dividing
two States. Geography, likewise, lies at the basis of the rules concerning
bays (Article 7, paragraph 2, of the Convention on the Territorial Sea).
Many illustrations can be derived from other chapters of international
law.

Nor can the insertion of the primary obligation to determine the
boundary by agreement cast doubt on the character of the provision.
It is true that this general principle of international law is not normally
stated. Yet one can find a similar stipulation in the Projet de Convention
sur la Navigation des Fleuves Internationaux drafted 90 years ago:
“In the absence of any stipulation to the contrary, the frontier of States
separated by a river corresponds to the falweg, i.e., the median line of
the channel” {translation by the Registry] (Engelhardt, Du régime conven-
tionnel des fleuves internationaux, Paris, 1879, pp. 228 f.). Reference may

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223 CONTINENTAL SHELF (DISS. OP. LACHS)

also be made to the provisions of Article 12 of the Geneva Convention
on the Territorial Sea and the Contiguous Zone.

It is also stated that the faculty of making reservations to Article 6,
provided by Article 12, paragraph 1, of the Convention, while not
preventing the equidistance rule from becoming general law, creates
considerable difficulties in this respect. Here we touch the very essence
of the institution of reservations. There can be little doubt that its birth
and development have been closely linked with the change in the process
of elaboration of multilateral treaties, the transition from the unanimity
to the majority rule at international conferences.

This new institution reflected a new historical tendency towards a
greater rapprochement and co-operation of States and it was intended
to serve this purpose by opening the door to the participation in treaties
of the greatest possible number of States. Within this process, reserva-
tions were not intended to undermine well-established and existing
principles and rules of international law, nor to jeopardize the object
of the treaty in question. Thus they could not imply an unlimited right
to exclude or vary essential provisions of that treaty. Otherwise, instead
of serving international co-operation the new institution would hamper
it by reducing the substance of some treaties to mere formality.

Such was, indeed, the view of this Court when it stated that “the object
and purpose of the Convention thus limit both the freedom of making
reservations and that of objecting to them” (Reservations to the Conven-
tion on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, I.C.J. Reports 1951, p. 24).

These considerations apply to all multilateral treaties, the Convention
on the Continental Shelf being no exception. Special attention should
be drawn to the fact that it reflects elements of codification and pro-
gressive development of international law, both closely interwoven.

As for Article 6, paragraph 2, the right to make reservations is deter-
mined by the three elements of which it is composed. First: can a reserva-
tion be made to the provision that the boundary of the continental shelf
“shall be determined by agreement between” the States concerned? Can
any State contract out of the obligation to seek agreement by consent?
Obviously not, for, as was indicated earlier, this stipulation should be
read as the application ad casum of a general obligation of States.

Can the reservation apply to the remaining part of the paragraph?
In view of a special situation a State may claim that in the relationship
between rule (equidistance line) and exception (special circumstances)
the latter should prevail. It may also be that a State recording a reserva-
tion aims at the exclusion of “‘special circumstances”’ and thus states its

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224 CONTINENTAL SHELF (DISS. OP. LACHS)

opposition to any exception from the rule. No better proof can be offered
that the possibilities of reservation are limited to these two than the
practice of States. Such was, indeed, the object of the reservations made
by Venezuela and France on the one hand (a special definition of “special
circumstances” is reflected in the reservation made by Iran). On the other
hand the reservation made by Yugoslavia shows the desire to strengthen
the rule by excluding any exceptions to it. (But even here the scope of
the reservations is not unlimited, as objections to some of them indicate.)

These considerations lead to the conclusion that the very substance
of paragraph 2 of Article 6 does not admit of reservations which purport
“to exclude ... the legal effects” of its provisions, but only of those
which may ‘‘vary” those legal effects (Draft Articles of the Law of
Treaties, Article 2).

The right to make reservations to Article 6 could not have been intended
as creating an unlimited freedom of action of the parties to the Con-
vention. This would have opened the door to making it wholly ineffective,
with the obvious result of creating a serious loophole in the Convention.

This is confirmed by the practice, covering as it does a period of ten
years.

This practice:

(a) constitutes important evidence as to the interpretation of the faculty
to make reservations to Article 6;

(6) indicates that the provisions of Article 6 have been generally accepted
without reservation by the parties to the Convention.

As to the wider issue, there is evidence that reservations made to
important law-making or codifying conventions have not prevented their
provisions from being generally accepted as law. Five States made reserva-
tions to the Fourth Hague Convention (1907), yet the principles it incor-
porated have with the passage of time become part of general inter-
national law, binding upon all States.

The Geneva Convention on the High Seas is another case in point.
It contains no clause expressly permitting reservations, but neither does
it follow the example of the Convention on Slavery of 7 September 1956
(Article 9) and prohibit them. In fact, more reservations have been
made to it than to the Continental Shelf Convention. Yet the Geneva
Convention on the High Seas is obviously a codifying instrument par
excellence: its Preamble speaks of “desiring to codify the rules” and
describes the ensuing provisions as “generally declaratory of established
principles of international law”.

The Convention on Certain Questions Relating to the Conflict of
Nationality Laws, signed at The Hague on 12 April 1930 (League of
Nations Treaty Series, Vol. 179, pp. 91-113, No. 4137), was, to use its

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225 CONTINENTAL SHELF (DISS. OP. LACHS)

own words, “a first attempt at progressive codification” (Preamble,
para. 4) in that field. Yet its Article 20 authorized reservations to all
of its substantive provisions. After a lapse of over 38 years, no more
than 14 States are parties to it—with six reservations and two declara-
tions. This notwithstanding, this Court has relied on the practice based,
inter aliu, on its provisions (Articles | and 5), even though the parties
to the case were not parties to the Convention (No/febohm, Second Phase,
Judgments, 1.C.J. Reports 1955, pp. 22 f.). It was also relied upon by
the Italian/United States Conciliation Commission (Merigé claim (Z.L.R.,
22 (1955), p. 450) and also Flegenheimer claim (Z.L.R., 25 (1958—T),
p. 149)).

A further illustration is provided by Article 20 of the United Nations
Convention on the Elimination of All Forms of Racial Discrimination,
adopted by the General Assembly on 21 December 1965: the new test
therein introduced concerning the incompatibility of reservations with
the object and purpose of the Convention has no bearing on the principle
itself.

To summarize the foregoing observations: from the manner in which
the Convention as a whole was prepared, from its obvious purpose to
become universally accepted, from the structure and clear meaning of
Article 6, paragraph 2, as a whole, from the genesis of the equidistance
rule and from the fact that it has been enshrined in no less than four
provisions of three conventions signed in Geneva in 1958, I find it difficult
to infer that it was proposed by the International Law Commission in
an impromptu and contingent manner or on an experimental basis, and
adopted by the Geneva Conference on that understanding. Nor is there
anything—including Article 12—that can disqualify the equidistance rule
from becoming a rule of general law or constitute an obstacle to that
process. Furthermore, there are no other known factors which may
have had this effect.

Il]

It is generally recognized that provisions of international instruments
may acquire the status of general rules of international law. Even un-
ratified treaties may constitute a point of departure for a legal practice.
Treaties binding many States are, a fortiori, capable of producing this
effect, a phenomenon not unknown in international relations.

I shall therefore now endeavour to ascertain whether the transformation
of the provisions of Article 6, paragraph 2, of the Geneva Convention
on the Continental Shelf, and in particular the equidistance rule, into
generally accepted law has in fact taken place. This calls for an analysis
of State practice, of the time factor, and of what is traditionally under-
stood to constitute opinio juris.

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226 CONTINENTAL SHELF (DISS. OP. LACHS)

Ten years have elapsed since the Convention on the Continental Shelf
was signed, and 39 States are today parties to it.

Delay in the ratification of and accession to multilateral treaties is
a well-known phenomenon in contemporary treaty practice. (According
to a recent study conducted by the United Nations Institute for Training
and Research, 55 out of 179 multilateral treaties in respect of which
the Secretary-General of the United Nations performs depositary func-
tions had received an average of only about 27 per cent. of possible
acceptances.) It is self-evident that in many cases substantive reasons
are at the root of these delays. However, experience indicates that in
most cases they are caused by factors extraneous to the substance and
objective of the instrument in question. Often the slowness and inherent
complication of constitutional procedures, the need for interdepartmental
consultations and co-ordination, are responsible (lack of ratification
does not, however, prevent States from applying the provisions of such
conventions). Frequently, again, there is procrastination, due to the
lack of any sense of urgency, or of immediate interest in the problems
dealt with by the treaty, for so long as there are other important issues
to deal with. This may be illustrated by a comparison between the Con-
vention on Diplomatic Relations (signed at Vienna on 24 April 1961)
and the Convention on the High Seas (signed at Geneva on 29 April
1958). Both are eminently instruments which codify existing law. Yet
the first, within a period of about seven years, had received 77 ratifica-
tions, accessions or notifications of succession, while after a lapse of
ten years only 42 States had become parties to the latter. The reasons
seem self-evident: the Convention on Diplomatic Relations is of direct,
daily interest for every State. It took ten years for an instrument codifying
existing law, the Convention on the Prevention and Repression of the
Crime of Genocide (adopted by the General Assembly of the United
Nations on 9 December 1948), to obtain 59 ratifications and accessions,
while by the end of 1967—-20 years after its adoption—71 States had
become parties to it.

These overlong delays in ratification and their causes, not related to
the substance of the instruments concerned, are factors for which due
allowance has to be made.

I may have dwelt on this point at excessive length. I have done so
because it is relevant to the issue now before the Court. For it indicates
that the number of ratifications and accessions cannot, in itself, be
considered conclusive with regard to the general acceptance of a given
instrument.

In the case of the Convention on the Continental Shelf, there are
other elements that must be given their due weight. In particular, 31
States came into existence during the period between its signature (28
June 1958) and its entry into force (10 June 1964), while 13 other nations
have since acceded to independence. Thus the time during which these

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227 CONTINENTAL SHELF (DISS. OP. LACHS)

44 States could have completed the necessary procedure enabling them
to become parties to the Convention has been rather limited, in some
cases very limited. Taking into account the great and urgent problems
each of them had to face, one cannot be surprised that many of them
did not consider it a matter of priority. This notwithstanding, nine of
those States have acceded to the Convention. Twenty-six of the total
number of States in existence are moreover land-locked and cannot be
considered as having a special and immediate interest in speedy accession
to the Convention (only five of them have in fact acceded).

Finally, it is noteworthy that about 70 States are at present engaged
in the exploration and exploitation of continental shelf areas.

It is the above analysis which is relevant, not the straight comparison
between the total number of States in existence and the number of
parties to the Convention. It reveals in fact that the number of parties
to the Convention on the Continental Shelf is very impressive, including
as it does the majority of States actively engaged in the exploration of
continental shelves.

Again, it is noteworthy that while 39 States are parties, initial steps
towards the acceptance of the Convention have been taken by 46 States,
who have signed it: half of them have ratified it. Thus to the figure of
39 that of 23 States is to be added, i.e., those States which by signing
it have acquired a provisional status vis-a-vis the Convention, each of
them being “obliged to refrain from acts which would defeat the object
and purpose of the treaty ...°° until it ‘‘shall have made its intention
clear not to become a party to the treaty” (Article 15a of the Draft
Articles of the Law of Treaties, prepared by the I.L.C., as amended and
adopted by the Committee of the Whole of the Conference on the Law
of Treaties; Doc. A'CONF. 39/C. 1/L.370/Add. 4, p. 8).

This mathematical computation, important as it is in itself, should
be supplemented by, so to speak, a spectral analysis of the representa-
tivity of the States parties to the Convention.

For in the world today an essential factor in the formation of a new
rule of general international law is to be taken into account: namely
that States with different political, economic and legal systems, States
of all continents, participate in the process. No more can a general rule
of international law be established by the fiat of one or of a few, or—as
it was once claimed—by the consensus of European States only.

This development was broadly reflected in the composition of the
Geneva Conference on the Law of the Sea; it is now similarly reflected
within the number of States which are parties to the Convention on the
Continental Shelf. These include States of all continents, among them
States of various political systems, with both new and old States re-
presenting the main legal systems of the world.

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228 CONTINENTAL SHELF (DISS. OP. LACHS)

It may therefore be said that, from the viewpoints both of number
and of representativity, the participation in the Convention constitutes
a solid basis for the formation of a general rule of law. [t is upon that
basis that further, more extensive practice has developed:

(a) A considerable number of States, both parties and not parties
to the Convention (and quite apart from the Parties to the present cases),
have concluded agreements delimiting their continental shelves. Several
of these make specific reference to the Geneva Convention (“having
regard to ..."”’, “bearing in mind...” or “in accordance with the Geneva
Convention on the Continental Shelf’, “bearing in mind Article 6 of
the Geneva Convention on the Continental Shelf” or “in accordance with
the principles laid down in the Geneva Convention on the Continental
Shelf of 1958, in particular its Article 6”). At least six other agreements
(registered with the United Nations) have accepted as a basis the equidis-
tance or median lines, though without actually referring to the Con-
vention. (Texts: United Nations Doc. A/AC.135/11, and Add. 1.)

(b) A considerable number of States (both parties and not parties
to the Convention) have passed special legislation concerning their con-
tinental shelves, or included provisions on the subject in other instru-
ments. Some of them have enacted a unilateral delimitation of their
continental shelf on the basis of the equidistance rule. Fifteen have
referred specifically to the Convention of 1958, invoking it in a preamble
or in individual articles, or employing definitions derived from it (some-
times with slight modifications). One instrument refers to “law and the
provisions of international treaties and agreements’, “law or ratified
international treaties’ (Guatemala), and another accepts the median
line as a definitive boundary (Norway). Another (U.S.S.R.) reproduces
mutatis mutandis the full text of Article 6 of the Convention, while
three (Finland, Denmark and Malaysia) make specific reference to that
Article. Another, yet again, invokes “established international practice
sanctioned by the law of nations” (Philippines). (Texts: U.N. Doc. A/AC.
135/11, and Add. 1.)

(c) In some cases the unilateral adoption of the equidistance rule has
had a direct bearing on its recognition by other States. To give but one
instance: Australia’s Federal Petroleum (Submerged Lands) Act, 1967,
which defines adjacent areas (section 5) and their delimitation (Second
Schedule), is based on the application of the equidistance rule. This
delimitation appears to have been effected on the assumption that a
neighbouring State could not advance any claim beyond the equidis-
tance line.

All this leads to the conclusion that the principles and rules enshrined
in the Convention, and in particular the equidistance rule, have been

229
229 CONTINENTAL SHELF (DISS. OP. LACHS)

accepted not only by those States which are parties to the Convention
on the Continental Shelf, but also by those which have subsequently
followed it in agreements, or in their legislation, or have acquiesced in
it when faced with legislative acts of other States affecting them. This
can be viewed as evidence of a practice widespread enough to satisfy
the criteria for a general rule of law.

For to become binding, a rule or principle of international law need
not pass the test of universal acceptance. This is reflected in several
statements of the Court, e.g.: “generally ... adopted in the practice
of States” (Fisheries, Judgment, I.C.J. Reports 1951, p. 128). Not all
States have, as ¥ indicated earlier in a different context, an opportunity
or possibility of applying a given rule. The evidence should be sought
in the behaviour of a great number of States, possibly the majority of
States, in any case the great majority of the interested States.

Thus this test cannot be, nor is it, one endowed with any absolute
character: it is of its very nature relative. Criteria of frequency, con-
tinuity and uniformity are involved. However, not all potential rules
are susceptible to verification by all these criteria. Frequency may be
invoked only in situations where there are many and successive oppor-
tunities to apply a rule. This is not the case with delimitation, which
is a one-time act. Furthermore, as it produces lasting consequences,
it invariably implies an intention to satisfy the criterion of continuity.

As for uniformity, “‘too much importance need not be attached to”
a “few uncertainties or contradictions, real and apparent” (Fisheries,
Judgment, I.C.J. Reports 1951, p. 138).

Nor can a general rule which is not of the nature of jus cogens prevent
some States from adopting an attitude apart. They may have opposed
the rule from its inception and may, unilaterally, or in agreement with
others, decide upon different solutions of the problem involved. Article 6,
paragraph 2, of the Convention on the Continental Shelf, by virtue of
the built-in exceptions, actually opens the way to occasional departures
from the equidistance rule wherever special circumstances arise. Thus
the fact that some States, as pointed out in the course of the proceedings,
have enacted special legislation or concluded agreements at variance
with the equidistance rule and the practice confirming it represents a
mere permitted derogation and cannot be held to have disturbed the
formation of a general rule of law on delimitation.

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230 CONTINENTAL SHELF (DISS. OP. LACHS)

With regard to the time factor, the formation of law by State practice
has in the past frequently been associated with the passage of a long
period of time. There is no doubt that in some cases this may be justified.

However, the great acceleration of social and economic change, com-
bined with that of science and technology, have confronted law with a
serious challenge: one it must meet, lest it lag even farther behind events
than it has been wont to do.

To give a concrete example: the first instruments that man sent into
outer space traversed the airspace of States and circled above them in
outer space, yet the launching States sought no permission, nor did the
other States protest. This is how the freedom of movement into outer
space, and in it, came to be established and recognized as law within a
remarkably short period of time. Similar developments are affecting, or
may affect, other branches of international law.

Given the necessity of obviating serious differences between States,
which might lead to disputes, the new chapter of human activity con-
cerning the continental shelf could not have been left outside the frame-
work of law for very Jong.

Thus, under the pressure of events, a new institution has come into
being. By traditional standards this was no doubt a speedy development.
But then the dimension of time in law, being relative, must be commen-
surate with the rate of movement of events which require legal regulation.
A consequential response is required. And so the short period within
which the law on the continental shelf has developed and matured does
not constitute an obstacle to recognizing its principles and rules, including
the equidistance rule, as part of general law.

Can the practice above summarized be considered as having been
accepted as law, having regard to the subjective element required? The
process leading to this effect is necessarily complex. There are certain
areas of State activity and international law which by their very character
may only with great difficulty engender general law, but there are others,
both old and new, which may do so with greater ease. Where continental
shelf law is concerned, some States have at first probably accepted the
rules in question, as States usually do, because they found them con-
venient and useful, the best possible solution for the problems involved.
Others may also have been convinced that the instrument elaborated
within the framework of the United Nations was intended to become
and would in due course become general law (the teleological element

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231 CONTINENTAL SHELF (DISS. OP. LACHS)

is of no small importance in the formation of law). Many States have
followed suit under the conviction that it was law.

Thus at the successive stages in the development of the rule the motives
which have prompted States to accept it have varied from case to case.
It could not be otherwise. At all events, to postulate that all States, even
those which initiate a given practice, believe themselves to be acting
under a legal obligation is to resort to a fiction—and in fact to deny
the possibility of developing such rules. For the path may indeed start
from voluntary, unilateral acts relying on the confident expectation that
they will find acquiescence or be emulated; alternatively, the starting-
point may consist of a treaty to which more and more States accede
and which is followed by unilateral acceptance. It is only at a later stage
that, by the combined effect of individual or joint action, response and
interaction in the field concerned, i.e., of that reciprocity so essential in
international legal relations, there develops the chain-reaction productive
of international consensus.

In view of the complexity of this formative process and the differing
motivations possible at its various stages, it is surely over-exacting to
require proof that every State having applied a given rule did so because
it was conscious of an obligation to do so. What can be required is that
the party relying on an alleged general rule must prove that the rule
invoked is part of a general practice accepted as law by the States in
question. No further or more rigid form of evidence could or should be
required.

In sum, the general practice of States should be recognized as prima
facie evidence that it is accepted as law. Such evidence may, of course,
be controverted—even on the test of practice itself, if it shows “much
uncertainty and contradiction” (Asylum, Judgment, I.C.J. Reports 1950,
p. 277). It may also be controverted on the test of opinio juris with regard
to “the States in question” or the parties to the case.

In approaching this issue one has to take into account the great variety
of State activity—manifesting itself as it does today in many forms of
unilateral act or international instrument or in the decisions of inter-
national organizations—, the multiplicity and interdependence of these
processes.

With the ever-increasing activities of States in international relations,
some rules of conduct begin to be accepted even before reaching that
state of precision which is normally required for a rule of law. If their
binding force is contested, courts operating within the traditional frame-
work of certitude may apply tests of perfection and clarity they could
not possibly pass. The alternative would be to fall back on some general
and, it may be, elusive principle. This may not be conducive to strength-
ening the edifice of international law, which is so important for present-

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232 CONTINENTAL SHELF (DISS. OP. LACHS)

day international relations. One should of course avoid the risk of
petrifying rules before they have reached the necessary state of maturity
and by doing so endangering the stability of and confidence in law. It
may, however, be advisable, without entering the field of legislation,
to apply more flexible tests, which, like the substance of the law itself,
have to be adapted to changing conditions. The Court would thus take
cognizance of the birth of a new rule, once the general practice States
have pursued has crossed the threshold from haphazard and discretionary
action into the sphere of law.

As to the cases before the Court, the situation leaves little room for
doubt. The conclusion by States of agreements in the field of continental-
shelf delimitation has self-evidently expressed their willingness to accept
the rules of the Convention “as law” and has in fact represented a logical
furtherance of the provisions of Article 6, paragraph 2. As for the
unilateral acts concerned, they also, by their reference to the Convention
or borrowing of its very wording, have given recognition to its provisions.
Other States have done so by acquiescence.

The foregoing analysis leads to the conclusion that the provisions of
Article 6, paragraph 2, of the Geneva Convention on the Continental
Shelf, and more especially the equidistance rule, have attained the
identifiable status of a general law. This may be contested in a particular
case by a State denying its opposability to itself. Then, of course, the
matter becomes one of evidence.

IV

I now turn to the principal issue concerning the law applicable to the
present cases. Is the Federal Republic bound by Article 6, paragraph 2,
of the Geneva Convention?

The Federal Republic of Germany signed the Convention on the
Continental Shelf on 30 October 1958. This fact, as indicated earlier,
cannot remain without influence on that State’s relationship to the Con-
vention.

Admittedly it does not imply an obligation to ratify the instrument,
nor is it in itself sufficient to bind the Federal Republic to observance
of its provisions. However, it certainly implies a link between the State
concerned and the treaty to which it is not as yet a party.

The Court has made this perfectly clear by stating that ‘Without going
into the question of the legal effect of signing an international convention,
which necessarily varies in individual cases, the Court considers that
signature constitutes a first step to participation in the Convention”;
and the Court continued: “It is evident that without ratification, signature

233
233 CONTINENTAL SHELF (DISS. OP. LACHS)

does not make the signatory State a party to the Convention; nevertheless
it establishes a provisional status in favour of that State” (Reservations
to Genocide Convention, Advisory Opinion, 1.C.J. Reports 1951, p. 28).
Consequently the Court recognized, in the context of the case it was
dealing with at the time, certain rights which “the signature confers upon
the signatory”. This obviously also implies some obligations.

Now, at no time did the Federal Republic make a statement which
could be interpreted as a repudiation of the Convention or the abandon-
ment of its intention to ratify it. This was made clear even in the course
of the proceedings before the Court, by the admission that it had not
“vet” ratified the Convention (hearing of 23 October 1968).

There is no need to stress the obvious. As long as this ratification has
not been forthcoming, the Federal Republic cannot be considered as a
party to the Convention. The Government may have changed its view,
as governments do; parliament may eventually refuse ratification. How-
ever, the act of signature has to be viewed in the context of other voluntary
and positive acts of the Federal Republic in this domain.

On 22 January 1964 the Federal Government issued a Proclamation
which stated, inter alia:

“The Federal Government will shortly submit to the Legislature
an Accession Bill on this Convention in order to create the constitu-
tional basis for ratification by the Federal Republic of Germany”:

and further:

“In order to eliminate legal uncertainties that might arise in the
present situation until the Geneva Convention on the Continental
Shelf comes into force and until its ratification by the Federal
Republic of Germany, the Federal Government deems it necessary
to affirm the following now:

1. In virtue 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
Government regards the exploration and exploitation of the natural
resources of the seabed and subsoil of the submarine areas adjacent
to the German coast but outside the German territorial sea, to a
depth of 200 metres and also—so far as the depth of the superjacent
waters admits of the exploitation of the natural resources—beyond
that, as an exclusive sovereign right of the Federal Republic of
Germany. In the individual case the delimitation of the German
continental shelf vis-a-vis the continental shelves of foreign States

234
234 CONTINENTAL SHELF (DISS. OP. LACHS)

,

remains subject to agreement with those States.” / Translation by

the Registry".

In the exposé des motifs of the Bill on the Continental Shelf, 25 July
1964, special reference is made to the Convention, as a manifest expression
of a change in the general approach to the problem of the continental
shelf:

“For a long time the possibility of individual States’ acquiring
special rights over the parts of the continental shelf lying off their
coast had been denied in the theory and practice of international
law. In recent years the opposite view, that the extraction and
appropriation of the resources of the marine subsoil are not free
but reserved to the coastal States, has come to prevail. A manifest
expression of this change can in particular be seen in the Convention
on the Continental Shelf of 29 April 1958 (reproduced in Archiv
des Vülkerrechts, Vol. 7, 1958-59, pp. 325 ff.), adopted at the Geneva
Conference on the Law of the Sea, which was signed by the Federal
Republic of Germany together with 45 other States and has since
been ratified by 21 of those States. According to its Article 11 this
Convention will come into force as soon as the next instrument of
ratification is deposited.

Considering the above, one may proceed on the assumption that,
at least since the Federal Government’s Proclamation of 20 January
1964, which has remained unchallenged, the Federal Republic holds
sovereign rights, coinciding as to content with those established for
coastal States by the Geneva Convention, in the domain of the
German continental shelf.” / Translation by the Registry 2}.

1 “Die Bundesregierung wird den gesetzgebenden Kôrperschaften in Kürze den
Entwurf eines Zustimmungsgesetzes zu dieser Konvention vorlegen, um die ver-
fassungsrechtliche Grundlage fiir die Ratifikation durch die Bundesrepublik
Deutschland zu schaffen.” ‘Um Rechtsunklarheiten zu beseitigen, die sich in der
gegenwärtigen Situation bis zum Inkrafttreten der Genfer Konvention über den
Festlandsockel und bis zu ihrer Ratifikation durch die Bundesrepublik Deutschland
ergeben kénnten, halt es die Bundesregierung fiir erforderlich, schon jetzt folgendes
festzustellen:

1. Die Bundesregierung sieht auf Grund der Entwicklung des allgemeinen Vôlker-
rechts, wie es in der neueren Staatenpraxis und insbesondere in der Unterzeichnung
der Genfer Konvention über den Festlandsockel zum Ausdruck kommt, die Erfor-
schung und Ausbeutung der Naturschätze des Meeresgrundes und des Meeresunter-
grundes der an die deutschen Meereskiisten grenzenden Unterwasserzone ausserhalb
des deutschen Kiistenmeeres bis zu einer Tiefe von 200 m und—soweit die Tiefe des
Darüber befindlichen Wassers die Ausbeutung der Naturschätze gestattet—auch
hieriiber hinaus als ein ausschliessliches Hoheitsrecht der Bundesrepublik Deutsch-
land an. Im einzelnen bleibt die Abgrenzung des deutschen Festlandsockels gegeniiber
dem Festlandsockel auswärtiger Staaten Vereinbarungen mit diesen Staaten vor-
behalten.” (Bundesgesetzblatt, Teil II, Nr. 5, 6 February 1964.)

2 “Lange Zeit hindurch war in der volkerrechtlichen Lehre und Praxis die Még-

235
235 CONTINENTAL SHELF (DISS. OP. LACHS)

The Proclamation of the Federal Government of 22 January 1964
refers, then, to “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”. Here an opinion is expressed as
to the character and scope of the law on the continental shelf. It constitutes
in fact a value-judgment on the state of the law on the subject. Indeed
it is emphatically implied that the mere signing of that instrument, at
a time when it had not yet entered into force, was evidence of general
international law. The Federal Republic viewed its own signature as a
constituent element of that evidence, thus attaching to it far more
importance than is normal in the case of signatures to instruments
requiring ratification. If words have any meaning, these could be under-
stood solely as the recognition by the Federal Republic that the Geneva
Convention reflected general international law. Specific reference was
made to State practice. It deemed this practice, covering, up to the
date of the Proclamation, a period of over five years, to be adequate and
sufficiently uniform to be considered as evidence of general international
law, for if there had been variations within it, or it had been inadequate,
no such conclusion as to the definitive state of the Jaw could have been
drawn. The Federal Government also linked the practice with the Geneva
Convention. Events after 22 January 1964 could in no circumstances be
held to weaken an official statement of this kind, but in fact they have
only added to its force. For the Geneva Convention has become law,
and subsequent practice has corroborated it further.

The Proclamation is, therefore, as binding upon the Federal Republic
today as it was at the time it was made. A value-judgment of so final
a nature may not be revoked. It should therefore be viewed as an unequi-

lichkeit des Erwerbs von Sonderrechten einzelner Staaten an den ihrer Kiiste vor-
gelagerten Teilen des Festlandsockels verneint worden. In den letzten Jahren setzte
sich die gegentielige Auffassung durch, dass die Gewinnung und Aneignung der
Schätze des Meeresuntergrundes nicht frei, vielmehr den Kiistenstaaten vorbehalten
seien. Als sichtbarer Ausdruck dieser Wandlung kann namentlich die auf der Genfer
Seerechtskonferenz zustande gekommene Konvention iiber den Festlandsockel vom
29. April 1958 (abgedruckt in Archiv des Vôikerrechts Bd. 7 [1958/59] S. 325 ff.)
gewertet werden, die neben 45 anderen Staaten auch von der Bundesrepublik
Deutschland unterzeichnet und in der Zwischenzeit von 21 dieser Staaten ratifiziert
worden ist. Nach ihrem Artikel 11 wird diese Konvention bereits mit der Hinterlegung
der nächsten Ratifikationsurkunde in Kraft treten.

Es kann angesichts dessen davon ausgegangen werden, dass der Bundesrepublik
spatestens seit der ohne Widerspruch gebliebenen Proklamation der Bundesregierung
vom 20. Januar 1964 im Bereich des deutschen Festlandsockels Hoheitsrechte
zustehen, die sich inhaltlich mit den in der Genfer Konvention zugunsten der
Kiistenstaaten festgelegten Rechten decken.” (Verhandlungen des deutschen Bundes-
tages, 1964, Vol. 91, Drucksache IV/2341.)

236
236 CONTINENTAL SHELF (DISS. OP. LACHS)

vocal expression of opinio juris, with all the consequences flowing there-
from. Indeed, if it may be claimed that the opinio juris of certain other
States is in doubt or not fully proven, this is certainly not the case of
the Federal Republic. This is a decisive point in the present cases.

As for the exposé des motifs of the Bill on the Continental Shelf, it
stands on the Geneva Convention and the Federal Government's Procla-
mation of 20 January 1964, and states that: “The rules provided for in
this Bill are to be the municipal supplement to the effects of the Procla-
mation in the field of international law” (Verhandlungen des deutschen
Bundestages, 1964, Vol. 91, Drucksache 1V'2341). It refers to the Con-
vention as a whole with no exception or reservation. The great evidential
weight attaching to documents of this nature is surely incontrovertible.
This Court has held a number of exposé des motifs ‘‘conclusive” in a
case before it (Fisheries, Judgment, I.C.J. Reports 1951, p. 135).

States may obviously change their intentions, conduct and policy,
but it would seriously undermine the worth of and reliance upon state-
ments made by governments if value-judgments of so important a nature
were disregarded or held as not binding upon the governments which
made them. For, to use the words which the Court employed in another
context: “Language of this kind can only be construed as the considered
expression of a legal conception . . .” (Fisheries, Judgment, [.C.J. Reports
1951, p. 136).

It has been submitted that the two official statements did not specific-
ally cite Article 6. This is true; however, they did not exclude it either.
The Convention as a whole is referred to, and that undoubtedly implicates
Article 6. And although the actual wording of the first part of Article 6,
paragraph 2, was employed, this cannot be understood as excluding its
remaining provisions. Only a specific exclusion of the other parts of the
paragraph could have had the effect alleged by the Federal Government.
Any doubt as to this reasoning should be dispelled by the Proclamation’s
specific statement that “The Federal Government will shortly submit
an Accession Bill on this Convention”. There was no hint of any objec-
tions the Federal Republic might raise to any provisions of the Conven-
tion—more particularly Article 6, paragraph 2—, though this was surely
the time and context for placing them on record. There is not even the
slightest evidence that reservations to the paragraph, of whatever scope
or nature, had been contemplated. If agreement between the parties was
mentioned, this, as the Federal Republic has itself indicated (ur infra),
was because the paragraph in question refers to it “in the first place”.
This view is confirmed by a further recognition of Article 6, to be found
in the joint minutes of the delegations of the Federal Republic and the

237
237 CONTINENTAL SHELF (DISS. OP. LACHS)

Netherlands, dated 4 August 1964 (Memorial, Annex 4). Though here,
too, reference is specifically made to the determination of the continental
shelf “by agreement”, this is because agreement was the obvious objective
of the conference contemplated at the time by the Federal Government
(which in no way implies rejection of the other components of Article 6,
paragraph 2).

This point has been confirmed by the Federal Government itself:

“At that time the Federal Republic could still expect to come to
an amicable agreement with its neighbours on the delimitation of
the continental shelf before its coast on equitable lines inasmuch
as Article 6 expressly refers the Parties to a settlement by agreement
in the first place” (Reply, para. 27).

The Reply continues:

“the insistence on the equidistance line as the only valid rule for
the delimitation of the continental shelf, and the reliance on Article 6,
paragraph 2, of the Convention for this purpose by the Kingdom
of Denmark and the Kingdom of the Netherlands in the negotiations
taken up on the instance of the Federal Republic of Germany ...
caused the Government of the Federal Republic to reconsider the
advisability of ratifying the Continental Shelf Convention as long
as the interpretation of Article 6, paragraph 2, is uncertain” (ibid.).

And yet the Federal Republic denies that it has ever recognized Article 6,
paragraph 2 (Reply, para. 28).

These statements call for some comment. For to refuse to recognize
provisions, and to take exception to a given interpretation of them, are
mutually exclusive positions. An interpretation is disputed in the name
of a contrary conception, in upholding which one in fact defends the
provisions as such. Thus either the Federal Republic has, as it claims,
refused to recognize Article 6, paragraph 2, of the Convention beyond
its first component (though this refusal leaves the binding force of its
two official statements wholly intact), or it must have held a conception
thereof which caused it to contest a particular interpretation. The two
positions cannot be equated, for interpretation must needs concern the
paragraph as a whole, which in no imaginable conception could have
been reduced to a single element, i.e., the determination of the boundary
by agreement. The difference of interpretation could in fact only have
concerned the relationship between the rule and the exception, between
equidistance and special circumstances.

238
238 CONTINENTAL SHELF (DISS. OP. LACHS)

In sum, the fragility of the claim to have withheld recognition from
Article 6, paragraph 2, as a whole is manifest. It is a claim which has
been argued from a change of position on the ratification issue the very
purpose of which was to explain away definitive and unambigucus
statements conveying such recognition. In fact the Federal Republic
made clear its intention to ratify the Convention simultaneously with
the Proclamation acknowledging it and the practice as expressive of
‘‘general international law”. The link between such recognition and ratifi-
cation may have been more than merely chronological, e.g. (the latter
resulting from the former), one of cause and effect. Subsequently the
Federal Government had second thoughts about ratifying the Conven-
tion. But, given the unreserved nature of the Proclamation and exposé
des motifs, the expression of such second thoughts cannot alter the fact
that the Federal Republic—whether or not it ratifies the Convention—
has recognized the binding character of the rules concerned.

The whole of the Federal Republic’s reasoning on the subject bears
all the marks of an ex post facto construction. It has obscured the true
legal issue in the present cases. It can have no effect on the recognition
of the Convention (and within it of Article 6, paragraph 2) and of State
practice, reflected in the two official statements placed on record by the
Federal Government.

* * *

Having thus analysed the position taken by the Federal Republic,
T reach the conclusion that it has recognized the provisions of the Con-
vention on the Continental Shelf and in particular its Article 6, paragraph
2, as binding. Subsequent changes in its attitude, in view of the nature
of its unequivocal statements, can have no legal effect. For, in the
circumstances, its situation cannot be assimilated with that of a country
which “thas always opposed any attempt to apply” a rule (Fisheries,
Judgment, I.C.J. Reports 1951, p. 131), nor with that of one having
NS the relevant treaty (Asylum, Judgment, I.C.J. Reports 1950,
p. 278).

* * *

In the light of all these facts and of the law, the real legal problem
with which the Court has been confronted is not that of the binding
effect of the equidistance rule upon the Federal Republic, for this is
established, but the question of whether there are special circumstances

239
239 CONTINENTAL SHELF (DISS. OP. LACHS)

which would justify a departure from it in the present cases. Indeed,
notwithstanding all that may have been alleged to the contrary, this is
the implicit burden of the Federal Republic’s claim.

Are there in fact any special circumstances justifying a departure from
the equidistance rule? Within the meaning of Article 6, paragraph 2,
“special circumstances” is to be understood as constituting merely an
exception to the general rule. This should not be interpreted otherwise
than in a restrictive manner. Indications to this effect were given by the
International Law Commission: ‘As in the case of the boundaries of
coastal waters, provision must be made for departures necessitated by
any exceptional configuration of the coast, as well as the presence of
islands or navigable channels” (Yearbook of the International Law Com-
mission, 1953, Vol. II, p. 216, para. 82. Similar and other views were
expressed at the Geneva Conference). There is furthermore room for
the view that the presence of natural resources should not be over-
looked.

What are called “special circumstances” should at all events rest on
sound criteria. The term should not be made subject to vague and
arbitrary interpretation (Conference on the Law of the Sea, 1958, Official
Records, 1], p. 93; VI, p. 91).

Nor should the concept of “special circumstances” be allowed to
substitute another rule for the equidistance rule. The provision should
be thus understood: that a special situation, created by “special circum-
stances” calls for a special, ad hoc arrangement.

There must be, in other words, a combination of factual elements
creating a situation to ignore which would give rise to obvious hardship
or difficulties. Here, as elsewhere, the application of the rule, and the
admission of possible exceptions from it, call for a reasonable approach.
‘“‘Reasonableness” requires that the realities of a situation, as it affects
all the Parties, be fully taken into account.

The mere fact that on the application of the equidistance rule the area
of continental shelf allotted to the Federal Republic would be smaller
than those of Denmark or the Netherlands does not create a qualitatively
anomalous situation such as could be regarded as a “special circum-
stance’. For the area falling to the Federal Republic would not be
inconsiderable. Moreover, if the notion of “special circumstances” is to
be taken to imply a slanting reference to comparative bases, a much
wider spectrum of factors should be taken into account—e.g., the com-
parative wealth and economic potential of the States concerned.

The evidence produced in the cases before the Court is not in fact
sufficient to justify an exemption from the rule. It has not been shown
that its application would, on account of the bend in the coast, expose
the Federal Republic to any special hardship, impose upon it any undue

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240 CONTINENTAL SHELF (DISS. OP. LACHS)

burdens or create for it any serious difficulties. Thus I find no adequate
basis for exemption from the equidistance rule .

*
* *

In the light of the grounds I have set forth, | deem it unnecessary to
deal with the other issues raised by the three Parties, or the Submissions
made by them. In particular, the question of the combined effect of the
delimitations concerned in each respective case does not arise, as each
is to be determined on the basis of the equidistance rule.

I conclude that 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 boundaries already determined by agreement is to
be carried out in accordance with the provisions of Article 6, paragraph 2,
of the Geneva Convention of 1958, and in particular by the application
of the equidistance rule. There are no special circumstances which justify
any departure from this rule.

To my great regret, therefore, I am unable to concur in the reasoning
and conclusions of the Judgment.

(Signed) Manfred LACHS.

241


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING MILITARY AND
PARAMILITARY ACTIVITIES IN AND
AGAINST NICARAGUA

(NICARAGUA y. UNITED STATES OF AMERICA)

ORDER OF 26 SEPTEMBER 1991

1991

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DES ACTIVITÉS MILITAIRES
ET PARAMILITAIRES AU NICARAGUA
ET CONTRE CELUI-CI

(NICARAGUA c. ÉTATS-UNIS D’AMERIQUE)

ORDONNANCE DU 26 SEPTEMBRE 1991
Official citation :

Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Order of 26 September 1991,
I.CJ. Reports 1991, p.47

Mode officiel de citation :

Activités militaires et paramilitaires au Nicaragua et contre celui-ci
{Nicaragua c. Etats-Unis d'Amérique), ordonnance du 26 septembre 1991,
C.J. Recueil 1991, p. 47

Sales number 59 8
N° de vente :

26 SEPTEMBER 1991

ORDER

CASE CONCERNING MILITARY AND PARAMILITARY
ACTIVITIES IN AND AGAINST NICARAGUA

(NICARAGUA v. UNITED STATES OF AMERICA)

AFFAIRE DES ACTIVITES MILITAIRES ET PARAMILITAIRES
AU NICARAGUA ET CONTRE CELUI-CI

(NICARAGUA c. ÉTATS-UNIS D’AMERIQUE)

26 SEPTEMBRE 1991

ORDONNANCE
47

COUR. INTERNATIONALE DE JUSTICE

ANNÉE 1991

26 septembre 1991

AFFAIRE DES ACTIVITÉS MILITAIRES
ET PARAMILITAIRES AU NICARAGUA
ET CONTRE CELUI-CI

(NICARAGUA c. ÉTATS-UNIS D'AMÉRIQUE)

ORDONNANCE

Le Président de la Cour internationale de Justice,

Vu l’article 48 du Statut de la Cour et l’article 89 de son Règlement,

Vu la requête déposée par la République du Nicaragua le 9 avril 1984
par laquelle la présente instance a été introduite contre les Etats-Unis
d'Amérique,

Vu l'arrêt rendu par la Cour le 27 juin 1986, par lequel la Cour a dit no-
tamment que les Etats-Unis d’ Amérique sont tenus envers la République
du Nicaragua de réparer tout préjudice causé à celle-ci par certaines vio-
lations d'obligations imposées par le droit international coutumier et le
droit conventionnel, commises par les Etats-Unis d'Amérique; décidé
que les formes et le montant de cette réparation seraient réglés par la Cour
au cas où les Parties ne pourraient se mettre d’accord à ce sujet, et réservé à
cet effet la suite de la procédure,

Vu l'ordonnance du 18 novembre 1987 par laquelle la Cour a fixé des
délais pour la procédure écrite sur la question des formes et du montant de
la réparation due en l'espèce, et vu le mémoire relatif à cette question
déposé par le Nicaragua le 29 mars 1988;

Considérant que, le 15 juin 1990, une lettre a été adressée à chacune des
Parties par le Greffier afin de s’informer de leur opinion quant à la date à

4

1991
26 septembre
Réle général
n° 70
ACTIVITÉS MILITAIRES ET PARAMILITAIRES (ORD. 26 IX 91) 48

fixer pour l'ouverture de la procédure orale concernant la question de la
réparation; considérant qu'aucune réponse à cette lettre n’a été reçue des
Etats-Unis, et que l’agent du Nicaragua, dans sa réponse, a indiqué les
circonstances particulières en raison desquelles il serait extrêmement
difficile au Gouvernement du Nicaragua de prendre une décision sur la
procédure à suivre en l’espèce au cours des prochains mois; et considérant
qu'il a été décidé, en conséquence, de ne pas fixer de date pour la procé-
dure orale;

Considérant que, par une lettre datée du 12 septembre 1991, l’agent du
Nicaragua a informé la Cour que son gouvernement avait décidé de
renoncer à faire valoir tous autres droits fondés sur cette affaire et ne
souhaitait pas poursuivre la procédure, et a demandé qu’une ordonnance
prenne acte du désistement et prescrive la radiation de l’affaire du rôle;

Considérant que copie de ladite lettre a été communiquée aussitôt au
Gouvernement des Etats-Unis, qui a été en même temps informé que le
Président avait fixé au 25 septembre 1991 l'expiration du délai dans lequel
les Etats-Unis pouvaient déclarer s'ils s’opposaient au désistement,
conformément à l’article 89, paragraphe 2, du Règlement de la Cour;

Considérant que, par une lettre datée du 25 septembre 1991, reçue au
Greffe le même jour par télécopie, le conseiller juridique du département
d’Etat des Etats-Unis a fait savoir à la Cour que les Etats-Unis se félici-
taient de la demande en désistement du Nicaragua,

Prend acte du désistement de la République du Nicaragua de l'instance
introduite par la requête enregistrée le 9 avril 1984; et
Ordonne que l'affaire soit rayée du rôle.

Fait en anglais et en français, le texte anglais faisant foi, au Palais de la
Paix, à La Haye, le vingt-six septembre mil neuf cent quatre-vingt-onze, en
trois exemplaires, dont l’un restera déposé aux archives de la Cour et les
autres seront transmis respectivement au Gouvernement de la Répu-
blique du Nicaragua et au Gouvernement des Etats-Unis d'Amérique.

Le Président,
(Signé) R. Y. JENNINGS.

Le Greffier,
(Signé) Eduardo VALENCIA-OSPINA.