360

DISSENTING OPINION OF JUDGE GROS

[Transiation]

1. Because of the importance of the Judgment from the standpoint of its
consequences for the law applicable to the delimitation of maritime spaces,
] believe it necessary that I should set forth the grounds of my dissent.

2. The Parties have submitted to the Chamber some 7,600 pages of
pleadings and 2,000 pages of oral arguments together with 300 supporting
maps, sketches or diagrams — more than 12 metres of shelving is taken up
by the volumes deposited in the library by the Parties ; yet no clear position
regarding the essential legal problems arising in this case emerges from this
mass of material. Thus the problems of the single boundary, of the law
applicable to the present case, of equity, of the exact role of geography,
have been examined in great detail but with a certain lack of precision
and some self-contradictions, accompanied frequently by the use of cate-
gorical formulae or assertions presented as rules or principles of law.
One is reminded of Mr. Justice Holmes’ warning about the relativity
of words :

“A word ... is the skin of a living thought and may vary greatly in
color and content according to the circumstances and the time in
which it is used.” (245 U.S. 418, 425.)

In the course of the present proceedings, the Parties and the Chamber
have each referred to judicial decisions in support of their legal reasoning,
but frequently a judicial text has been quoted without anything to indicate
that colour and content have in fact changed. The present must however be
seen in its own true colours : the jurisprudence of the subject is no longer
viewed as in 1969 and 1977, but has taken a sudden turn of which due note
must be taken, and the Judgment of the Chamber takes its place within this
change.

3. International law has been evolving since, in its Judgment of 18
December 1951, the Court first signalled the economic importance of
certain situations in the determination of a maritime boundary, in the
following five lines of a 26-page Judgment :

“Finally, there is one consideration not to be overlooked, the scope
of which extends beyond purely geographical factors : that of certain
economic interests peculiar to a region, the reality and importance of
which are clearly evidenced by a long usage.” (I CJ. Reports 1951,
p. 133.)

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GULF OF MAINE (DISS. OP. GROS) 361

The opposite viewpoint was stated in the dissenting opinion of Judge Sir
Arnold McNair :

“Norway has sought to justify the Decree of 1935 on a variety of
grounds, of which the principal are the following (A, B, C and D):

(A) That a State has a right to-delimit its territorial waters in the
manner required to protect its economic and other social interests.
This is a novelty to me. It reveals one of the fundamental issues which
divide the Parties, namely, the difference between the subjective and
the objective views of the delimitation of territorial waters.

In my opinion the manipulation of the limits of territorial waters for
the purpose of protecting economic and other social interests has no
justification in law ; moreover, the approbation of such a practice
would have a dangerous tendency in that it would encourage States to
adopt a subjective appreciation of their rights instead of conforming
to a common international standard.” (CJ. Reports 1951, p. 169.)

During the Conferences of 1958 and 1960, the idea of a contiguous
fishing zone lying close to the coastline of a State began to take shape, but
in the years which followed it was the continental shelf which came to the
fore. On this, the Court’s Judgment of 20 February 1969 in the North Sea
Continental Shelf cases U.C.J. Reports 1969, pp. 4-56, hereinafter referred
to as the 1969 Judgment), and the Decision of the Court of Arbitration
between the United Kingdom and France dated 30 June 1977 (Cmnd
7438 ; hereinafter referred to as the 1977 Decision) constituted — the
Decision supporting the Judgment — a body of case-law whose elements
are well known. The Third United Nations Conference, after a decade of
effort, produced the Convention of 10 December 1982 (hereinafter re-
ferred to as the 1982 Convention), which deals with the delimitation of
maritime spaces in a manner which is not that of the above-mentioned
case-law but, even before its adoption by the States members of the
Conference, attracted the support of the Court in the Judgment of 24
February 1982 on the Continental Shelf (Tunisia/ Libyan Arab Jamahiriya)
U.C.J. Reports 1982, pp. 18-94, hereinafter referred to as the 1982 Judg-
ment). References will be made to other decisions but the essential texts
are, on the one hand, the Conventions of 1958 and 1982 and, on the other,
the decisions of 1969, 1977 and 1982. It is a fact that the 1982 Judgment,
which was based on the draft of the 1982 Convention, constituted a sudden
change in the case-law, and that the Convention substituted a new régime
for the delimitation of both the continental shelf and the 200-mile zone for
that which, in the case of the continental shelf, had emerged from the 1958
Convention, the 1969 Judgment and the 1977 Decision. Moreover, it is a
fact that the present Judgment essentially chimes with the standpoint
taken by the Court in 1982. The effects of this marked change of stance in
conventional law and jurisprudence form the main reason for my dis-
agreement with the majority of the Chamber regarding the solution to the

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problems raised by the present case. I said at the time why I considered that
the 1982 Judgment had taken a wrong turning (/.C_/. Reports 1982, dis-
senting opinion, pp. 143-156); the Court’s deviation could have been
mitigated by a decision of the present Chamber in a dispute which had all
the elements needed to strengthen rather than erode the law on the
delimitation of maritime expanses, but this opportunity has been
missed.

4. I would like to make one initial comment on this case which has been
presented by the Parties as an important precedent in international law.
This is not so, since the Parties themselves have informed the Chamber of
the precautions they have taken to ensure that, if necessary, they will be
free to negotiate on the boundary laid down by the decision (reply by the
United States to a judge’s question : sitting of 9 May 1984) ; moreover, the
Parties had made sure in advance that the future Judgment would relate
solely to the Gulf of Maine dispute, held to be a case apart from three other
maritime boundary disputes between the two States, as transpires from the
minutes of bilateral talks issued by the State Department in 1975-1976 and
communicated to the Chamber on 8 May 1984 (Ann. 3, September 1976,
pp. 3-6). Finally, the part played in the oral arguments by the concept of
special circumstances, together with the use made of the principles or
methods relied on, would in themselves have been sufficient to ensure that
the effects of the Gulf of Maine Judgment were confined to the actual object
of the dispute, namely the delimitation of the maritime zones of that
particular area.

5. In the Special Agreement the question is put quite simply : What is
the course of the single maritime boundary that divides the continental
shelf and fisheries zones of Canada and the United States of America in the
Gulf of Maine area (preamble and Art. II, para. 1) ? It became apparent
during the argument that this simplicity in fact overlay some serious
problems, which I shail now consider.

I shall begin with the problem of the single boundary line, which the
President of the Chamber raised in his question to the Parties in the
following terms :

“In the event that one particular method, or set of methods, should
appear appropriate for the delimitation of the continental shelf, and
another for that of the exclusive fishery zones, what do the Parties
consider to be the legal grounds that might be invoked for preferring
one or the other in seeking to determine a single line ?” (Sitting of 19
April 1984.)

The wording of this question shows that a point of law that was essential
to the case had not at that time been resolved by the Parties, namely the
question of the law applicable to the determination of a single boundary
dividing a continental shelf and fishery zones, the fundamental question in
the present dispute. To examine the question of the single boundary is to
enquire into the applicable law, no less. As the Judgment states in para-
graph 161, the replies of the Parties have done no more than refer the

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problem back to the Chamber itself. At the sitting of 10 April 1984 the
Agent of Canada treated the single boundary as a “legal concept”, and the
Parties appeared to think that the mere fact of their having asked for a
single boundary in the Special Agreement sufficed to impose it on the
Chamber. However, an agreement between parties to request only one line
for the two areas in question does not, in itself, create a rule of law in the
case to be decided, making it possible to ignore all the facts of the case, the
legal elements and all the circumstances relevant to the situation in hand ;
the Parties are agreed on point A, as being the point of departure of the
line, and on the location of its other terminus within a broad triangle — two
indications which, taken together, set a strict limit to the Jurisdiction of the
Chamber in determining the course of the boundary — but this does not
turn either point A or the triangle into a legal concept. These elements of
the Special Agreement are minor factual details provided by parties who,
in 15 years of negotiations, had not been able to reach agreement on even
one segment of continental shelf boundary or fishing limit. The Parties did
not invoke any legal considerations when indicating their agreement on
point A, the triangle and the single-line formula : quite the reverse. It was
precisely such legalities that the President’s question called upon them to
explain. The Chamber’s jurisdiction to decide, in law, what the requested
maritime boundary should be was not limited by the Parties’ indications.
Its task was to see whether there existed in international law any rule
prescribing or authorizing the use of a single line for the continental shelf
and the fishery zone, whatever the factual circumstances and the rules of
the applicable law, something that has not been done either by the Parties
or by the Judgment.

6. The Judgment’s reply is given in paragraphs 192-194 : the delimita-
tion called for is “a delimitation of two distinct elements by means of a
single line. This is an unprecedented aspect of the case which lends it its
special character” — and the paragraphs referred to go on to draw con-
clusions for the criteria to be used to unite continental shelf and fisheries
through the use of a single line. The essence of the matter lies here, and I
shall come back to it ; discussion must be focused upon this reply, since it
governs the reasoning of the Judgment regarding the law applicable to this
case. The Chamber having been asked for a single line, this request in itself
— “this fact”, says the Chamber — suffices to create a sort of special
circumstance which takes precedence over all the rest — principles, criteria
and methods — and supersedes the problem of determining whether this
single line is, or is not, established in accordance with law. It is clear to me
that this reply 1s no reply : the words “special circumstances” are, indeed,
avoided, but the idea is there for sure and, once again, a change of ter-
minology does not suffice to avoid a problem. The “special aspect” of the
single line is a fact, says the Judgment, and as a fact is only relevant if it has
a justifiable influence upon the legal grounds for the boundary to be
determined, the question remains. In the law of delimitation, heretofore,
relevant facts used to be tangible, because they consisted solely of parti-
cular geographic circumstances. When the notion of “special aspect” is

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extended to the fact that a single line has been requested, the question is
put in another guise, but it remains the same : what are the legal grounds
permitting this request to be applied to the facts of the case, namely a
certain continental shelf and certain fishery zones ? — since, if there is no
other answer than to transform a request of the Parties into a special
circumstance from which legal deductions can be made, the applicable law
is confined to an a priori assessment by the Parties. What is more, even the
Parties themselves did not give an answer in this sense to the question put
to them, and they had admitted that here was a real problem which the
Chamber would have to solve. No answer, in fact, has yet been given to the
preliminary question of law as to whether the Chamber may view the words
“single maritime boundary” used in the Special Agreement as a circum-
stance of decisive effect on the delimitation in the Gulf of Maine area or
whether, by virtue of any rules of law applicable to the facts, this request,
which is one fact among others in the overall case, does not in itself suffice
to determine that there shall be a single-line delimitation — this being a
mere hypothesis for so long as it has not been verified on legal grounds. The
International Court of Justice has said :

“the seisin of the Court is one thing, the administration of justice is
another. The latter is governed by the Statute, and by the Rules.”
(Nottebohm, Preliminary Objection, Judgment, I.C.J. Reports 1953,
p. 122.)

7. International law has evolved since the codification conferences of
1930 and 1958, down to the Convention of 10 December 1982 which has
been presented as a codification. It should be recalled that the Conferences
of 1930 and 1958 had been prepared through studies and reports by the
most eminent experts in international law, the authors of standard works
on the law of the sea. In 1958, the régime of the continental shelf was
codified in a convention, while the claims of the coastal State to a fishery
zone in modest areas of the high seas were taken into consideration in a
convention of more limited scope which was rapidly overtaken by the
pretensions of certain coastal States. It was not for another 20 or so years
later, though before the Third United Nations Conference on the Law of
the Sea had yielded any result, that the concept of an exclusive economic
zone extending to 200 miles and comprising exclusive fishing rights was to
be put into practice — sometimes in regard only to fisheries — whether
unilaterally or by agreement between certain States ; the right of a coastal
State to such a zone is nowadays accepted. During the Third United
Nations Conference, this practice was enshrined in texts which bear the
stamp not of legal research but of compromises between interests. Judging
by the accounts given in international law reviews by some of the parti-
cipants, the method of work adopted by the Conference, doing away with
the meetings of committees of jurists but convening groups so composed as
to reflect the opposing interests, gave its proceedings (for which there are
no official minutes) a cachet which sets them apart from those of codifi-
cation conferences. Moreover, the 1982 Convention has not yet come into

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force and, in addition, the Government of the United States, when replying
to a question put by a judge, adopted a particular position with regard to
the Convention which casts doubt upon its applicability to the present case
(sitting of 9 May 1984). It remains to be ascertained whether the text of the
Convention of December 1982 contains any rules of general international
law which as such were already applicable to the delimitation of the
boundary which the Chamber was asked to determine.

8. There is nothing on delimitation of continental shelf or fishery
boundaries in conventional law, in customary law, or more particularly in
the Convention of 1982, which gives any indication of any obligation to
proceed by means of a single line. The objective sought by States as from
the 1958 Conference, and carried to extremes over the past decade or so, is
plain : the ever-increasing enlargement of the maritime domain of the
coastal State ; first it was the contiguous zone, then the adjacent fishing
zone, at the same time as the continental shelf, then the exclusive economic
or fishery zone which, in certain declarations by States, has connoted an
intention to widen the territorial sea, Whereas the 1958 Convention on the
Continental Shelf contained a rule, the equidistance/special-circum-
stances rule, that rule — though upheld by the case-law from 1969 to
February 1982 — has been eroded by the fact that the Third United
Nations Conference was unable to reach a decision regarding the role of
equidistance and equity other than in texts which do not contain any rule
of delimitation, either for the continental shelf or for the economic zone :
Articles 74 and 83 confine themselves to saying that an agreement based on
international law within the meaning of Article 38 of the Statute of the
Court should make it possible to arrive at an equitable solution. It is dif-
ficult to discern any rule in such a formula : to say that due application of
international law should give rise to an equitable result is a truism. Neces-
sity for an agreement between the States concerned, application of inter-
national law, equity — yes, but by what means ? It was the chairman of the
negotiating group in which the Article 83 compromise formula on delimi-
tation was reached who expressed doubt that “the Conference will ever be
able to draw up a formula providing a clear and precise answer to the ques-
tion of the criteria for delimitation”, as President Sir Humphrey Waldock
has recalled (The International Court and the Law of the Sea, 1979, p. 12 ;
see also Judge Oda’s opinion on the legal value of the 1982 Convention,
LC.J. Reports 1982, p. 246, para. 143). All the gains represented by the legal
edifice of 1958, the 1969 Judgment and the 1977 Decision, have thus been
destroyed by the effect of those two articles of the 1982 Convention,
which take no account of that jurisprudence and efface it by the use of an
empty formula. The Court had already, in February 1982, revised the 1969
Judgment so far as delimitation of the continental shelf was concerned,
by interpreting customary law in accordance with the known provisions of
the draft convention produced by the Third United Nations Conference.

9. The Parties in the present case were acquainted with the 1982 Con-
vention and the change of course in the case-law ; they were unable to
invoke any legal rule but could well have thought that a single line would be

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a convenient formula and serve their interests at present. The position of
the Chamber cannot be the same, so long as it has not been established that
a single line is either prescribed by general international law or legally
demanded by the relevant factors in the present case. The Court in its
Judgment of 24 February 1982 decided to set aside any consideration of
equidistance, because the Parties had not proposed it, but did not maintain
that this would have prevented it from considering that method if it had
thought fit. The Chamber was in no different situation when the time came
to determine whether a delimitation by a single line was legally acceptable
in the circumstances of the present case.

10. Prior to the 1982 Convention, delimitation under the 1958 Conven-
tion on the Continental Shelf took place according to the “equidistance/
special-circumstances rule” (Art. 6 of the 1958 Convention on the Conti-
nental Shelf ; cf. Art. 12 of that on the Territorial Sea and the Contiguous
Zone). At the time, this seemed to indicate that an identical principle could
provide the basis for any boundary delimiting the various areas of mari-
time jurisdiction — then of modest extent. A new question arose with the
introduction of the exclusive fishing or economic zone: where lie the
natural identity between the continental shelf and the zone and the rela-
tionship of dependence between a State and waters stretching for 200
miles ? In 1973, Judge Sir Gerald Fitzmaurice observed in this connection
that “there must come a point at which claims to territorial waters would
verge on the absurd” as soon as those waters ceased to retain any sort of
physical bond with the lands “to which they were supposed to be...
appurtenant” (.C.J. Reports 1973, p. 72, para. 8). It is these pretensions,
judged inordinate by most distant-water fishing States and the jurists of
previous codifications before the Third United Nations Conference on the
Law of the Sea, which now come to the fore : the ambition is to wrest from
the sea the greatest possible expanse with a view to its immediate or
eventual exploitation and, above all, the exclusion of others. It is the
seizure of vast areas, the continental shelf and the 200-mile zone, which has
become the aim, with repercussions on a law of delimitation which the
1958 and 1960 Conferences had deait with at a time when the boundary
problem applied to a territorial sea of 3 or 6 miles, or a fishing zone of up to 12
miles, with the ensuring of opposability to third States as the main concern.
In the context of a 200-mile claim, the question of delimitation takes on a
different complexion, since it is inseparable from the immensity of the
maritime spaces involved, and States will no longer agree clear rules,
because of their determination to appropriate as much as they possibly can
by every conceivable means of delimitation. That is what lies enshrined in
the two articles of the 1982 Convention (Arts. 73 and 84), which open the
way to arbitrariness by defining nothing, and it is likewise the reasoning of
the Chamber’s Judgment, founded as it is, like the 1982 Judgment, on those
same articles and, like the articles themselves, on an a priori denial of the
equidistance method and on the concurrent use of various criteria, meth-
ods and arguments solely interconnected by the idea of arriving at an
equitable result. The Chamber thus followed the Parties in adopting,

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through the propounding of a “fundamental norm”, the unusable formula
of the 1982 Convention (paras. 7 and 8 above) and decided to apply it to the
case. The terms in which the Chamber has formulated this rule in para-
graph 112 of the Judgment are merely the veil for two words that sum it up
just as well as two subparagraphs : agreement + equity.

11. The 1982 Convention replaced the continental shelf concept as
codified by the 1958 Convention with the one notion of a distance of 200
miles, whether or not the coastal State has that natural prolongation of its
land territory which the 1969 Judgment analysed (paras. 47-48 and 95 ;
1977 Decision, paras. 191 and 194 ; cf. 1982 Convention, Art. 76, para. 1).
Hence certain States now are credited with a mythical, non-existent con-
tinental shelf, whereas others which do have such a natural physical pro-
longation see no account taken of it — that is, if one holds that the 1982
Convention which is not yet in force has indeed, on this point, modified the
1958 Convention, which the Judgment does not say. Not having to judge
anything other than the subject of the present dispute, I would say that the
question does not arise between the Parties, who are bound by the 1958
Convention on the Continental Shelf. The United States has not main-
tained that the 1958 Convention has lapsed, but that it is not “determi-
native” for the delimitation of a single line ; the Anglo-French Court of
Arbitration had formally rejected the contention, put forward at that time
by the French Government, that the 1958 Convention had lapsed. The
Parties agree that the continental shelf of the Gulf of Maine area is one
continuous, unbroken shelf. The present case therefore features both a
recognized physical continental shelf and a continental shelf convention
which is in force but is not being applied between the Parties.

12. As to the 200-mile fishery zone claimed by either Party, it must be
pointed out that the arguments before the Chamber were often widened to
cover the concept of an economic zone. This was not what was called for in
the Special Agreement, which speaks only of fishery zones, and the United
States decision to claim an exclusive economic zone, taken in 1983 while
the case was pending, cannot have any effect on the boundary decision.
Admittedly, Article III, paragraph 1, of the Special Agreement does pro-
vide that the maritime boundary decided by the Chamber shall apply to
any claim or exercise of sovereign rights or jurisdiction over the waters or
sea-bed and subsoil. But the Chamber is judging what has been submitted
to it, i.e., a continental shelf and fisheries boundary (Special Agreement,
Art. II, para. 1). The fishery zones of the two States connote exploitation of
the fishing resources of the volume of water within the 200-mile limit.
Whereas the continental shelf presents a problem of sea-bed and subsoil
resources (1969 Judgment, para. 96 in fine), the delimitation of fisheries
involves division of the water column. A single boundary will establish a
unity between the sea-bed and the exploitation of the subsoil on the one
hand, and the water column with its resources on the other ; it cannot be
assumed that this unity is pre-existent. The two elements have always been
treated separately. In 1958 there was one convention on the continental
shelf and another on fishing, while back in 1945 the United States made

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two proclamations on the same day, one on the continental shelf, the other
on fishing in certain inshore areas of the high seas. Of the Parties, one, the
United States, has argued that the continental shelf has as it were been
incorporated into the 200-mile zone, and the other, Canada, that there is a
rule of law requiring a single boundary. But neither of them has explained
how the water column can have absorbed, or effaced, a real, continuous
continental shelf, by some phenomenon whereby the specific identity of
the subsoil and sea-bed is suppressed simply through the presence in the
column of fisheries.

13. The Chamber has decided, in paragraphs 192, 193 and 194, the
formal preclusion of any criterion “which can now be seen as inappro-
priate to the delimitation of one or other of the two objects” that it is
requested to delimit ; this means “a delimitation of two distinct elements
by means of a single line” (para. 192) ; the very fact that the delimitation
has a twofold object constitutes a special aspect of the case. “It follows
that... itis necessary .. . to rule out the application of any criterion found
to be typically and exclusively bound up with the particular characteristics
of one alone of the two natural realities that have to be delimited in
conjunction” (para. 193). Here paragraph 194 must be quoted :

“In reality, a delimitation by a single line, such as that which has to
be carried out in the present case, i.e., a delimitation which has to
apply at one and the same time to the continental shelf and to the
superjacent water column, can only be carried out by the application
of a criterion, or combination of criteria, which does not give prefer-
ential treatment to one of these two objects to the detriment of the other,
and at the same time is such as to be equally suitable to the division of
either of them. In that regard, moreover, it can be foreseen that with
the gradual adoption by the majority of maritime States of an ex-
clusive economic zone and, consequently, an increasingly general
demand for single delimitation, so as to avoid as far as possible the
disadvantages inherent in a plurality of separate delimitations, pre-
ference will henceforth inevitably be given to criteria that, because of
their more neutral character, are best suited for use in a multi-purpose
delimitation.” (Emphasis added.)

14. It seems to me difficult to consider that the Chamber has thus
replied to the question which its President had put to the Parties. One
cannot simultaneously recognize the existence of two different realities
and decide to ignore the difference in determining the boundary except on
the supposition that words can be used to suppress a problem rather than
deal with it. Even had it been possible, in the case of an unreal continental
shelf area, but only given present possibilities of exploitation, to maintain
that this false continental shelf was not to be distinguished from the water
column, it is out of the question to do so after having recognized the
existence in the Gulf of Maine of a real, continuous continental shelf,
which has already been explored. In the second place, after having dis-
carded the continental shelf, to strike an equal balance according to the

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logic of the Judgment, one must also exclude the fisheries ; it is a sea
deprived of all meaning, an empty sea, which is to be divided — which was
not among the Parties’ themes. Finally, I find it hard to grasp what a
criterion can be that does not give preferential treatment to one object to the
detriment of the other and at the same time is suitable to both ; these words
call for explanations which are not provided by the Judgment and cannot
be for others to provide. If they are to be taken in their proper sense, the
criterion must do no harm either to one object (continental shelf) or to the
other (water), so it must be a criterion devoid of effect : one which, to avoid
giving preferential treatment, exerts no action. But, in that case, how is it
suitable ? The only conclusion to be drawn is that the President’s question
remains unresolved, not only in regard to the dispute here decided but for
any States contemplating a single boundary. It still remains to be explained
how two States bound by Article 6 of the 1958 Convention on the Con-
tinental Shelf become released from it because it does not apply to a
superjacent zone of water ; before any question of a single boundary arose,
the continental shelf was already covered by the high seas, which were
subject to a different régime. The result of refusing to balance up the
equities of the two elements, the continental shelf and the water column, is
that the water has obliterated all consideration of the other element with-
out any opportunity being allowed of appreciating how the latter would
have prejudiced the former. To say that the two elements are a priori in
opposition is not found sufficient, and the maxim becomes : only the water
counts. This is surprising, because no equitable criterion is revealed for
dividing the water without first ensuring that no harm is done to the
continental shelf, which means that the latter element will always be the
loser. The obligation to apply the 1958 Convention in force between the
Parties as regards the “object” continental shelf cannot be escaped on the
pretext that it would be detrimental to the “object” water or not “be
suitable” ; in the present case it is necessary to begin with the treaty
applicable in regard to the continental shelf and to see which element is
favoured or disfavoured.

15. By not carrying out an examination of the proper factors for deter-
mining the course of a boundary equitable for both elements, the conti-
nental shelf and the fisheries, the Chamber has failed to assess the equities
in its treatment of the facts. Perhaps there is still time to challenge the
unwarranted confusion of the elements to be delimited and to prevent the
idea from taking root that, in contemporary positive law, only one delimi-
tation rule still exists : up to 200 miles from each State, its jurisdiction over
the waters of the sea and everything which they contain or cover is total,
and one need only divide up the water between the States concerned for the
rest to follow of its own accord. For such a ruling to be a rule, some better
grounds must be found for it than what exists at present, which is confined
to a bare assertion in the absence of such an examination as a court must
normally carry out in order to apply the law to the facts. What weight do
use of the subsoil and use of the water carry in the determination of the
boundary : the same weight, different weights or no weight at all ? Even if

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it were none at all, as the Chamber holds — subject to the small role
conceded in extremis to checking that the line does not harm the balance of
interests (paras. 238-239) —, it would be useful to know the reason for this
total negation.

16. À single boundary not justified by legal reasoning can be neither the
“reasonable” solution called for by the 1969 Judgment, paragraph 90
in fine, nor the equitable result in terms of the fundamental norm pro-
pounded by the Parties and taken up by the Chamber (Judgment, para.
112). The existence of some bilateral agreements that have fixed a single
boundary for a continental shelf and for a 200-mile zone does not prove
anything, the fact of States’ signing agreements that fix a single boundary
being in itself irrelevant in the absence of any indication how the line in
question satisfies all the equitable considerations, in relation to the con-
tinental shelf, fishing, etc., when it was perhaps out of a sense of compro-
mise, neglect of some factor, or merely for the sake of convenience that
such agreements were concluded. Even if one were to cite an agreement
providing for a single continental shelf/zone boundary and formally spe-
cifying in the text that the line had been modified in a particular segment
for a reason connected either with the continental shelf or with the zone,
one would still need to know by what reasoning the parties arrived at that
solution ; sometimes an agreement includes concessions which are not
motivated by reliance on international law. Two States may negotiate a
single boundary which suits them without going into the question of
whether the result is equitable ; a court must establish a line which is
equitable for both parties, after having examined and solved the different
problems to which the continental shelf and the zone give rise. In the early
stages of the present dispute, between 1964 and January 1976, the two
States only discussed a delimitation line for the continental shelf, as the
Judgment recalls in paragraphs 64-68 ; the discussion was still centred on
this topic in 1976. This was revealed by the State Department in a record of
the negotiations issued in January 1976 which showed that at the time the
United States Government was considering a continental shelf boundary
only, while noting the danger of prejudicing the potential boundary of its
economic zone in the Gulf of Maine, which therefore implied two distinct
boundaries (Ann. 2, January 1976, p. 2, para. II, and pp. 5-6, paras. IV and
V). It was perhaps the extension of the dispute to fishing that prompted the
United States theory of a natural boundary along the Northeast Channel
separating fishery zones, which constituted another admission of the spe-
cial character of each of the two elements to be delimited. There accord-
ingly existed — at least from 1964 to 1976 — grounds for differentiating
between a continental shelf boundary and a fishery zones boundary, and
the Parties’ request for a single line in the Special Agreement, concluded
after lengthy negotiations the content of which the Parties have not
revealed, does not suffice to make the single line a determinative special
aspect.

17. The finding that the single boundary is merely an indication of
delimitation procedure, and accordingly does not bind the Chamber if the

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law applicable to the relevant circumstances of the case does not allow the
application of such procedure, has not been contradicted by the Judgment.
The relevance of a circumstance or special aspect — the choice of words is
optional — can be explained and demonstrated, and only by thorough
enquiry concerning the continental shelf and the fishery zone in the Gulf of
Maine area would it have been possible to gauge the truth of the matter.
Either such analysis of the two categories of maritime domain concerned
would have shown that their delimitation involves the same problems or
that the content of each is — in accordance with the internal logic of the
present Judgment — quite irrelevant, in both of which eventualities one
may reasonably devise a single boundary, or else it would have brought to
light the existence of some differences between the respective lines that
would be reasonable on the one hand for the sea-bed and subsoil and, on
the other, for the waters above them. Considering that the two States still
have difficulty in delimiting their territorial waters and that they nego-
tiated between 1964 and 1976 (cf. para. 16, above) with respect to a
continental shelf boundary only, it is difficult to accept the theory which
has been argued of the single boundary as a rule of contemporary inter-
national law in process of formation, if not already accomplished, or the
thesis of the single line as a special circumstance. To bolster its decision on
this point the Chamber, in paragraph 194 of the Judgment, anticipates the
possibility of an exclusive economic zone, accepted by maritime States,
covering all forms of jurisdiction, something which, it must be said, will
closely resemble a 200-mile territorial sea. Here again, Judge Sir Arnold
MeNair had already declared that a claim to exclusive jurisdiction over
extensive areas was equivalent in substance, even if that substance was
functional and divisible, to the legal situation which obtains in the zone of
sovereignty over territorial waters (.C.J. Reports 1951, pp. 159-169).
Having changed the law on such areas, States cannot retain those features
which once gave point to the work done in studying the special fishery
interest and economic dependence of certain sectors of a population. The
entire bases of reasoning have been altered; the coastal State wanted
exclusive jurisdiction over the sea-bed and subsoil, then over the water
column, and it has obtained what it wanted ; but the resources are not the
legal cause of the exclusive zone, they have been removed outside the
problem : the existence of mineral or living resources is not taken into
account. A continental shelf without resources and an almost empty sea
offer no obstacle to the appropriation of the continental shelf and of a
fishery zone. The notion of economic dependence can no longer be invoked
as a determining factor, in the meaning given by the Court to those two
words in the 1951 Judgment quoted above. In paragraphs 237-240, the
Chamber briefly examines the possible effects of the sharing of resources
resulting from the line, which seems to contradict their exclusion from the
examination of the principle of the single boundary. By obliterating any
distinction between the continental shelf and the water, a step is taken
towards unification of the rights enjoyed as well as that of the maritime
spaces placed under the sovereignty of the coastal State.

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GULF OF MAINE (DISS. OP. GROS) 372

18. The problem of the unity of the zones is not a new one; it was

broached in three opinions, appended to the Judgment of 24 February
1982, which I find it appropriate to recall :

(a)

(b)

(c)

pu

Judge Oda devoted a section of his dissenting opinion to the “Relation
between the Continental Shelf and the Exclusive Economic Zone”
(paras. 126-131) and Chapter VII (paras. 146-177) to the “Principles
and Rules for the Delimitation of the Continental Shelf/Exclusive
Economic Zone”. I note that the question of the single boundary is
raised in paragraph 126 and that Judge Oda seems to conclude that an
“alignment” is possible of the régime of the zone on that of the
continental shelf (para. 130, beginning and end). But his position is
more reserved in paragraphs 143-145, which contain a detailed criti-
cism of the negative aspects of the wording of the 1982 Convention on
the law of delimitation U.C.J. Reports 1982, pp. 246-247, para. 143 in
fine, para. 144, para. 145, last sentence). Judge Oda’s conclusions
continue to be reserved in paragraph 146 (subparas. (4) and (5)) and,
while his analysis of the two zones in question is thorough, he seems
rather to indicate ways of approaching the problem than to come down
firmly in favour of a single line.

The dissenting opinion of Judge Evensen also deals with the exclusive
economic zone, in particular in paragraphs 7, 8, 9 and 10, where he
raises the problem of different delimitation lines and refers to the
replies given by Tunisia and Libya ; he points out that, in the case in
question, he has doubts as to whether “a practical method for the
delimitation of the areas concerned should be based solely or mainly
on continental shelf considerations” owing to the “practical impact of
the concept of natural prolongation through the development of that
of the 200 mile economic zone” (p. 10). In paragraph 15 and also in his
“Conclusions” (p. 319) Judge Evensen reverts to the idea of a single
line, on the grounds of the “obvious advisability” of this solution.
U.CJ. Reports 1982, pp. 269-288, 296-297 and 319-323.)

Judge Jiménez de Aréchaga deals in one page with the question of the
exclusive economic zone (paras. 54-56) and he considers that “at least
in the large majority of normal cases, the delimitation of the exclusive
economic zone and that of the continental shelf would have to coin-
cide. The reason is that both of these delimitations are governed by the
same rules” (para. 56, dealing with Articles 74 and 83 of the 1982
Convention). U.C.J. Reports 1982, pp. 115-116.)

19. The foregoing observations were drafted in connection with a dis-
te on the continental shelf at a time when the question of the single line

did not arise, but by three judges commenting on the work of the Third
Conference on the Law of the Sea ; they are reflected in paragraph 194 of
the Judgment, which predicts that in future the single line will be generally
adopted (para. 17, above). This does not bring the problem concerned any

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GULF OF MAINE (DISS. OP. GROS) 373

closer to solution, if only because, the 1982 Convention not being in force,
one has to decide whether the merging of the continental shelf up to the
200-mile limit with the zone is already a rule of customary law. This point is
not self-evident for, if that were the case, there would no longer be any
possibility of drawing a boundary confined to the continental shelf, and
whether that is so could be deduced from an examination of current
practice (the reverse is suggested by the fact that several current disputes
concern the continental shelf alone). The Chamber could not adopt a
position involving the mutual neutralization of the relevant criteria of the
continental shelf and of the water without examining them, unless it first
settled this problem of the recognition in customary law of the merging of
all jurisdictions over the maritime spaces in the 200-mile zone, quite aside
from the texts of the 1982 Convention. A court applies established law and
not a possible future law. The question is whether it may, at will, delimit a
continental shelf and the superjacent waters taking them separately, in
turn, or as fused with one another, and that question is one which it cannot
decide in the abstract, with the sole explanation that a single boundary is
the solution of the future and, furthermore, one advisable or convenient ; it
still has to be one reasonable and reasoned. What had to be judged was
whether a single boundary would in the present case be an equitable line
and on what grounds. This is a question to which the Court referred in the
1982 Judgment, in a sentence at the end of paragraph 107:

“As to the presence of oil wells in an area to be delimited, it may,
depending on the facts, be an element to be taken into account in the
process of weighing all relevant factors to achieve an equitable result.”
(CJ. Reports 1982, pp. 77-78.)

It would seem, then, that the presence of resources in a continental shelf is a
relevant factor.

20. Ifit were to become apparent from an examination of the respective
problems of the continental shelf and the exclusive fishery zone in the Gulf
of Maine area that, when law is applied to the facts, there are no factors
complicating the drawing of a single boundary, this solution would cer-
tainly be “simpler” for the Chamber and the Parties, but that is not the
point ; simplicity comes near to facility, and facility is no criterion for
delimiting boundaries ; it is all too often a means of postponing difficulties
to a later period. If it were apparent that the unification of two different
lines which might be justified by the facts, one for the continental shelf and
the other for the economic zone, was inequitable for one of them in relation
to the other, it is hard to see what application of equity might justify a
single line which would be partially inequitable because it would produce
extraordinary, unnatural or unreasonable results, either on the continental
shelf side or on the side of the zone. Everything therefore depended on
analysis of the facts, especially as it had been submitted in connection with
Georges Bank that any oil extraction might ruin its fisheries and cause

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GULF OF MAINE (DISS. OP. GROS) 374

pollution throughout the Gulf, entailing heavy responsibilities, and as the
Parties’ positions seemed to rule out agreement on either joint manage-
ment of the fisheries or joint exploitation of deposits divided by the
delimitation. The judicial task is however not limited by the Parties’
presentation of their opinions on all these points (cf. 1969 Judgment, para.
97, on the unity of any deposits, “a factual element which it is reasonable to
take into consideration in the course of the negotiations for a delimita-
tion”, and the separate opinion of Judge Jessup (pp. 66 ff. and 81-84), who,
going well beyond paragraph 240 of the present Judgment, hoped to
contribute to “further understanding of the principles of equity which...
are ‘part of the international law which [the Court] must apply” (p.
84)).

21. Although “continental shelf” has become a term which no longer
applies to a physical content, Article 56 of the 1982 Convention, which
defines the exclusive economic zone and the rights, jurisdiction and duties
attributed to States, ends with the following words : “The rights set out in
this article with respect to the sea-bed and subsoil shall be exercised in
accordance with Part VI”. This Part VI is headed Continental Shelf and
contains ten articles including Article 76 on the “Definition of the Con-
tinental Shelf”, Article 77 on the “Rights of the Coastal State over the
Continental Shelf”, Article 78 on the “Legal Status of the Superjacent
Waters and Air Space . . .”, not to mention Article 83 on the “Delimitation
of the Continental Shelf . . .”, identical with Article 74 on the Zone. What
is left of the legal unity of maritime spaces and of the idea that the
continental shelf should be merged with the zone, if the last paragraph of
Article 56 defining the zone refers back to Part VI for another definition of
the continental shelf element not contained in Article 77, and why should
there be two articles on a delimitation defined in one and the same way ?
The construction of the Treaty with a Part V (Exclusive Economic Zone)
and a Part VI (Continental Shelf) only makes sense if the two areas differ in
certain ways, to such an extent that it was necessary to devote to them two
parts of a convention on the law of the sea. Exegetes who want to fuse the
rules of delimitation have therefore tojustify the radical uselessness of Part
VI, in what purports to be a text of “codification”. Comparison of Articles
55-62 and 73-74 (Zone) with Articles 76, 77, 78, 81 and 83 (Continental
Shelf) seems to leave only this alternative : either two legal régimes,. or
chaos.

22. Prior to the 1982 Convention, international law, according to the
1969 Judgment and the 1977 Decision, had developed a few firm precepts :
equidistance plus the special circumstances of the area to be delimited,
with in the forefront the configuration of the coasts, their special aspects,
and nature to be respected as the “given fact”. The solution to the present
dispute could have been deduced from the very terms of paragraph 99 of
the 1969 Judgment :

“In view of the particular geographical situation of the Parties’

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GULF OF MAINE (DISS. OP. GROS) 375

coastlines upon that sea, the methods chosen by them for the purpose
of fixing the delimitation of their respective areas may happen in
certain localities to lead to an overlapping of the areas appertaining to
them. The Court considers that such a situation must be accepted as a
given fact and resolved either by an agreed, or failing that by an equal
divison of the overlapping areas, or by agreements for joint exploi-
tation, the latter solution appearing particularly appropriate when it
is a question of preserving the unity of a deposit.”

Although the Chamber’s Judgment alludes to these indications, it in fact
retains of them nothing more than the idea of equal division, and this it
modifies completely by supplemeting it with criteria, methods and cor-
rections which however viewed are extraneous to the 1969 text or the 1977
Decision. It is up to those who support the current legal vacuum to
demonstrate that the 1958 Convention has in fact become obsolete and
that the 1982 Convention, which the United States did not sign and which
is not in force, has nonetheless uncovered a customary rule on this point
which runs counter to both the 1958 Convention and the 1969-1977 case-
law by assuming that a fusion has taken place between the continental shelf
and the 200-mile zone and that a single boundary is called for, without
further enquiry.

23. The argument that the continental shelf is now fused with the zone
and that the 1958 Convention on the Continental Shelf is obsolete was put
forward by the French Government in 1977 where the 1958 Convention
was concerned, and was rejected by the Court of Arbitration (cf. Decision,
paras. 45, 46, 47, 48 and 205) after its having indicated that “it should take
due account of the evolution of the law of the sea in so far as this may be
relevant in the context of the present case” (para. 48 in fine), which was no
acquiescence but simply a polite way of setting on one side a draft codi-
fication. The International Court itself, in its Judgment on Fisheries Juris-
diction, had decided that, as a court of law, it could not renderjudgment sub
specie legis ferendae I.C.J. Reports 1974, para. 53). The task at present is to
discover in the evolution of the law of the sea some precise element of at
least equal relevance to the 1958 Convention, which the United States held
applicable to the continental shelf between 1969 and 1976, if not longer,
judging by the partial documentation furnished to the Chamber (para. 16
above) ; to grasp the causes of this treaty’s dereliction, it would have been
necessary to find other grounds than a mere statement that it is no longer
determinative because it cannot apply to water. On 16 July 1970 the United
States issued a declaration regarding Canada’s having on 6 February of
that year acceded to the 1958 Convention with a reservation that gave rise
to an objection on the part of the United States (United Nations, Multi-
lateral Treaties 1975, p. 455). No indication has been given of any legal
grounds for the termination of the 1958 Convention since then. As for the
legal position adopted by the Government of the United States regarding
the 1982 Convention and its role, in its reply to a question put by a judge at

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GULF OF MAINE (DISS. OP. GROS) 376

the sitting of 9 May 1984, it allows such a degree of freedom in the positions
to be adopted in each specific case, at the discretion of that Government,
that the problem of the application of the contents of that instrument by
the United States will invariably remain a matter for its own exclusive
appreciation. Finally it should be recalled that there is a uniform conti-
nental shelf in the Gulf of Maine and that it extends even beyond the
200-mile limit, the delimitation of its final part between the 200-mile line
and the outer edge of the slope remaining to be undertaken by the two
States at some subsequent stage (Special Agreement, Art. VII). It scarcely
makes sense to eliminate the continental shelf within the Gulf by assimi-
lating it to the water column, when the final part of it will remain to be
delimited and will be treated as a specific area of shelf as from the 200-mile
line where the water will cease to be a factor.

24. The position taken with regard to the single boundary by the last
part of the Judgment, where, in verifying its conclusions, the Chamber
considers as factors the whole range of economic resources abundantly
invoked by the Parties, with a view to demonstrating that they ought to be
satisfied with the result, calls for the same remarks as Judge Sir Robert
Jennings made on another case in his dissenting opinion on Italy’s appli-
cation for permission to intervene :

“{this] is to assume that the correct location of a continental shelf
boundary is determined by a court of law by establishing some sort of
compromise between different claims. Such an assumption is surely
contrary to principle. Continental shelf boundaries are established by
the applicable law, taking account of all the relevant circumstances.
The actual extent of the claims of the parties is not a relevant cir-
cumstance. Continental shelf rights in fact belong whether they are
claimed or not. Claims are, therefore, irrelevant except in so far as
they can be justified before the Court by reference to the applicable
law.” (Continental Shelf (Libyan Arab Jamahiriya/ Malta), Application
for Permission to Intervene, I.C.J. Reports 1984, p. 155, para. 22.)

As the Chamber’s reasoning is not justified by reference to the applicable
law, the single line remains a method adopted by the Chamber in accor-
dance with a line of reasoning that it has based, like the Court in 1982, upon
judicial freedom of appraisal. Whether, in the present case, the single line
provides an equitable result is a question still unresolved, and what para-
graphs 238-241 express is merely the hope that the Parties will accept the
considerations put forward by the Chamber in regard to its decision. This
shows how far removed is a compromise solution from a judgment based
on the legal prescriptions to which the Parties must bow.

25. Thus while the crucial question in the present case has been posed. it
has not been answered. The Chamber has not discovered the legal grounds
that could be relied upon to support a method of continental shelf delimi-
tation, rather than one of delimiting waters, for the determination of its

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single line. The explanation involving criteria of more neutral character
cannot be the answer, since it cancels out the question ; it means claiming
that the Judge may eliminate any criterion peculiar to one zone or the other,
which is to relegate each zone to total isolation, and the very possibility of a
delimitation common to both is thus denied. This avoidance of a question
central to the whole debate — indeed, the debate itself — was perhaps
unnecessary within the internal logic of the present Judgment. Having
followed the Court in the change of jurisprudence that occurred in 1982,
as indicated at the beginning of this opinion, the Chamber has merely
effected an equal division of water, and this fact in itself is sufficient
admission that there are no legal grounds to be relied upon as regards
either of the two zones whose fusion has thus been noted if not decided.
The question put by the President of the Chamber will nevertheless con-
tinue to face treaty negotiators seeking to establish a single boundary,
unless it discourages them from adopting this procedure whenever a real
continental shelf is involved.

26. To my mind, the conclusion to be drawn from examination of the
problem of the single boundary qua decisive factor in a new law of
delimitation ts that, in the present state of international law according to
the Court’s jurisprudence in the 1982 Judgment based on the convention
text of that year, anything may henceforth be deemed relevant for the
purpose of reaching an equitable result if the States concerned agree to
hold it so or the judge is convinced of its relevance. I find this closer to
subjectivism than to the application of law to the facts with a view to the
delimitation of maritime areas. Over and above the question of the single
boundary, therefore, it is the entire problem of the law applicable from
now on to any maritime delimitation, be it of the continental shelf or the
zone, which has to be faced. The key to the Chamber’s legal reasoning lies
in the approach it adopted in setting out to establish the single boundary,
starting from the unprecedented and decisive nature of the fact of having
been asked for one, and, as all of that reasoning is based on equitable
considerations, it is necessary to enquire what kind of equity is
involved.

27. In redefining the law of maritime delimitation on the basis of
Articles 74 and 83 of the 1982 Convention the Chamber has exposed the
disservice rendered international law by the Third United Nations Con-
ference ; | have summed up this formulation in two words : agreement +
equity. As the concept of agreement has nothing to do with the work of
judges, only equity remains. But if there is any legal concept to which each
attaches his own meaning, it is equity. There is, I feel, no need for me to say
more than what is essential to the present case in a surely never-ending
debate. What is the equity referred to in any remnant of the law of
maritime delimitation that may survive in 1984 ?

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GULF OF MAINE (DISS. OP. GROS) 378

28. The Chamber’s Judgment follows the line of thought of the Court’s,
thus confirming that there has been a break in the case-law in relation to
the 1969 Judgment and the 1977 Decision. In a dissenting opinion
appended to the Judgment of 1982 I have already expressed my reaction as
to the nub of the problem raised by this new view of equity, and it seems to
me useless to repeat it here ; I wish to incorporate into the present opinion
the full text of paragraphs 9, 10, 11, 12 (first 11 lines), 13, 14 (first 25 lines),
16, 17 and 18 of the 1982 opinion ; it is thus unnecessary to introduce many
quotations here, and I shall just give one, which is important :

“While the Court is entitled to change its conception of equity in
comparison with the 1969 Judgment, the use of a few quotations from
that Judgment does not suffice to prove that no such change has taken
place.” (1.CJ. Reports 1982, p. 151, para. 16.)

29. The decisive reason for my not having accepted the conception of
today’s Judgment, in which the Chamber enlarges upon that of the Court
in 1982, continues to reside in the fact that equity does not consist in a
successive search for equality, proportionality, result ; each of these con-
siderations is a way of applying equity, it is a choice made in the manner of
applying the law, and not an accumulation of equities which there is
nothing to forbid supplementing with such others as one may glimpse in
that frame of mind. One must not narrow down the law of delimitation to
two words, agreement plus equity, only to equate that equity with judicial
discretion.

30. The Chamber has applied the second subparagraph of the version of
a “fundamental norm” which it gives in paragraph 112: the equitable
character of the criteria, the capability of the methods to ensure an equi-
table result. Faced with a geographical situation as simple as nature can
produce, 1.e., one devoid of any particular geographical features leading to
distortions, within the precise meaning of all those words in the 1977
Decision (paras. 238-245 and 248-252), the Chamber has decided to take
no account of the resources of the continental shelf and fishery zones
concerned, save in a brief examination of the equity of its line at the very
end of its reasoning (paras. 237-238), and has divided a volume of water the
content of which is indifferent from the viewpoint of the result. To that end
it has performed a highly developed legal analysis based (paras. 95-114,
155-163 and 190-230) on the quest for an equitable result, in the 1982
version enshrined by the Judgment and Convention of that year, and, with
the aid of criteria which it declares equitable and various methods deemed
apt for the purpose, has gone in search of a line equitable in itself.

31. To follow the internal logic of the Chamber’s reasoning, one must
take into consideration paragraphs 79-96, which expound the doctrine on
which it bases the Judgment, and paragraphs 191-206 concerning the
methods, with paragraphs 235-241 offering a verification of the applica-
tion of those two elements of the reasoning from the viewpoint of the
equitable result. Paragraph 191 defines the fundamental rule according to
the Chamber in a new version of the articles on delimitation in the 1982

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GULF OF MAINE (DISS. OP. GROS) 379

Convention, while paragraph 241 gives an assurance that the overall result
is indeed equitable. The chain is thus complete, and it is worth drawing
attention to the new construction in its essential elements because, if it is
taken together with the previous Judgment, that of 1982, the jurisprudence
of the Court appears fixed for the time being. Thus there can be no
appraisal of the Gulf of Maine Judgment in relation to the attainments of
1969 and 1977, which have been categorically repudiated, and it would be
no use seeking to counter the decisions of the Court in 1982, and the
Chamber in 1984, by arguments with which they have deliberately parted
company. The study carried out in paragraphs 79-96 concludes with the
finding that, if Article 6 of the 1958 Convention is taken together with
customary law, the law on delimitation can be summarized as foliows : any
delimitation must be effected by consent between States, a principle which,
“going a little far in interpreting” the 1958 Convention, can conceivably be
supplemented, according to the Chamber, by an implicit rule that any
agreement or other, equivalent solution must involve the application of
equitable principles (Judgment, para. 89). These principles are not, we are
told, principles of law like the principle of agreement and the aforesaid im-
plicit rule (para. 90). The Judgment concludes these passages on the law of
delimitation by recalling certain dicta from the 1982 Judgment and
describing the relevant provisions of the 1982 Convention. To my mind
this new doctrine is no advance upon paragraph 71 of the 1982 Judgment
(last eight lines), which has been answered by paragraph 19 of a dissenting
opinion (.C.J. Reports 1982, p. 153). That much is apparent, when the
Judgment applies its doctrine to the case in hand, in the use of criteria,
methods and corrections each and every one of which is based on a notion
of equity reached by the successive and always subjective reactions of the
judge.

32. Admittedly, the application of the combined methods, with succes-
sive corrections, is accompanied by references to the justifications for each
adjustment made to a theoretical line arrived at via the method, that of
equal division, which is the first to be employed yet is presumed to be
inequitable, since it is constantly corrected. The end having first been
established, the means follow. This is apparent even at the beginning of the
Judgment in the description of the facts, which in any delimitation decision
is a textbook exercise generally restricted to the geographical description
of the situation ; not so in the present instance, where the Chamber already
interprets the geographical facts so as to prepare the treatment it will be
giving them in its use of methods and in its corrections of a line which is
justified not by its own merits resulting from the employment of factors of
equity defined and balanced within an overall examination of the relevant
circumstances, but at the whim of the successive evaluations of a judge
unfettered either by law or by the geographical facts of the case. The idea
that the Gulf is a rectangle has no other utility than to prepare the dis-
covery that an angle in the north of the Gulf will enable a bisector to be
drawn ; the choice of some imaginary lines to compose certain sides of the
mythical rectangle ending in an area outside the Chamber’s competence is

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presented as a striking likeness of nature. The Gulf is not a rectangle in any
exact description of the facts in this case, since, like any gulf, it has only
three sides, but it is made out to be one simply because that enables it to be
given a fourth side at its entrance which will prove an indispensable line for
justifying the direction of the final segment of the boundary, in that a
perpendicular can be drawn between this unreal closing line of the Gulf
and the coast of the United States, this being as foreign to the geographical
situation as the description of a rectangular gulf, and the whole being
reminiscent of the smoothing-out technique proposed by the French Gov-
ernment in 1977 and unequivocally rejected by the Decision (paras. 230
and 246). By such means is a gulf of somewhat oval shape pressed into the
service of a series of deductions based on a rectangle whose imaginary
character is conceded by the Chamber itself. The Judgment of 1982 availed
itself of a similar procedure (cf. dissenting opinion, .C./. Reports 1982,
pp. 154 and 155, paras. 18, 19 and 21 ; cf. Judge Sir Gerald Fitzmaurice’s
warning against the arbitrary drawing of lines in maritime delimitation,
Fisheries Jurisdiction, 1 C.J. Reports 1973, p. 29, separate opinion, n. 11).
This succession of deductions stimulated by lines made up with a definite
end in view is a factor in the reasoning pursued by the Chamber in its
search for an equitable result.

33. One general observation is called for on the subject of geographical
facts and the uses to which they are put. When it is said, as it sometimes is,
that geography is neutral, this implies that things are what they are, and the
formula confirms the dictum that “There can never be any question of
completely refashioning nature” (1969 Judgment, para. 91). Geography is
impartial rather than neutral, in the sense that it is decisive in a delimi-
tation and, in itself, gives no preference to one State rather than another. A
judge may not, therefore, modify the geographical situation by any rep-
resentation, be it a line, rectangle or angle, which is his own vision of the
facts and alters those facts. When such technical procedures are utilized,
they may serve to prepare the application of a method but they are not an
interpretation of the geographical situation as nature fashioned it. In the
case of a continuous continental shelf between two States, as in the present
instance, the delimitation may be effected in the disputed area by equal
division, as the Court said in 1969 in a passage of its Judgment (para. 99)
cited by the present decision ; but if one adds to the continental shelf the
waters above it after having declared that, since neither element yields any
criterion equally applicable to the other, neither provides the key to the
delimitation, any new interpretation of the geographical facts which upsets
the equality accepted as governing the delimitation becomes unjustifiable.
But this is precisely what is visible in the successive approaches to the
problem in the present Judgment, whether it be the rectangular Gulf, the
coasts represented by other lines than those of the national limits of the
territorial waters, the artificial closing line of the Gulf and its direction, the
distortion attributed to Sable Island but not Nantucket, the refusal to take
the Parties’ coasts into consideration for the segment of the boundary
outside the Gulf, or interpretations of the geography of the Gulf which

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distort that search for the equal division of disputed maritime areas which
the Chamber holds to be the basic equitable criterion for the purposes of its
task.

34. Since the Chamber’s basic criterion is the equal division recom-
mended as long ago as 1969, it must be pointed out that the Judgment of
that year did not refer in this connection to the whole of the continental
shelf but only to the areas of overlap between the Parties’ zones in certain
sectors (para. 99) ; the Decision of 1977 was no less precise in limiting the
result of the division to those marginal areas where the Parties’ continental
shelves converged (para. 78). This aspect of the matter is ignored by the
Chamber’s Judgment, though it has repercussions on the use of propor-
tionality applied to all the coasts of the Parties in relation to the whole of
the continental shelf areas and fishery zones, as well as on the actual
manner of determining the boundary. In a territorial dispute, it is only the
land actually disputed that is measured up, and everything recognized as
incontestably belonging to one party is left out of the operation ; nobody
thinks to object against one party that it already has more land than the
other. During the oral proceedings, the methodology of hydrographic
surveys was invoked in relation to areas the greater part of which were not
in dispute, instead of merely areas of overlapping “in certain localities”
(1969 Judgment, para. 99), and the Chamber has followed suit.

35. Overlapping is not a phenomenon exclusive to the continental shelf
and the 200-mile zone ; once two States have adjacent coasts, the salients
thereon may begin to produce difficulty in the territorial waters and
contiguous zone, giving rise to mutual encroachments. The present dispute
concerns a specific overlap as apparent in the facts, and the precondition
for employing the method of equal division envisaged in the Judgment is
that this area of overlapping be defined by the Chamber, not in accordance
with the Parties’ claims but on objective bases. This has not been done. The
fact is that, in what may be called the area of the real dispute, i.e., solely the
area where overlappings occur between the effects of the relevant coasts of
the two States, the geographical situation presents an equality between
those States which does not call for any correction based on arguments
from equity ; it is a situation of equality in the same plane, within the
meaning of the Court’s 1969 Judgment, if nice calculations (an expression
used by the 1977 Decision, in particular at paras. 27 and 250) based on all
the coasts and sea areas of the Parties within and without the Gulf be
eschewed and attention focused on this zone of actual overlaps, which does
not extend beyond an initial segment of line as from point A, in the part
where the two States have adjacent coasts. When the facts of geography
indicate and permit of a division producing equality, there can be no
question of elaborating an equity to improve upon equality, and the line
drawn has simply to ensure that equality. Admittedly, to enunciate the
principle of dividing overlaps is simply to pose the true problem, not to
solve it. But it is through narrowing the disputed area down to what it really
is that the solution becomes visible.

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GULF OF MAINE (DISS. OP. GROS) 382

36. The application of equal division in the case is sufficient to rule out
the argument based on the idea of total proportionality held to be an
indispensable condition for an equitable maritime delimitation. In the
present instance, this pretension to improve upon equality involves the
importation of geographical circumstances that are extraneous to or
remote from the precise object of the dispute. The present case is one in
which a limited overlap, due to coasts adjacent to the point of departure of
the line requested of the Chamber, could be resolved simply by dividing it
equally with the aid of any appropriate method, and equidistance in the
first place. A dispute limited in space and size, magnified by the Parties for
their own reasons, could have been given the right solution by the Chamber
once it had adopted the principle of equal division. Instead, the Chamber
has needlessly elaborated supplementary arguments from equity which
traverse the whole Judgment in a series of doctrinal considerations, cri-
teria, methods and corrections ; this edifice is, to my mind, contrary to the
applicable international law. Once the Chamber decided to apply equal
division, that decision was final ; unless deviations come to light, in the
shape of previously unnoticed inequities, there is nothing else left to decide
(cf. dissenting opinion, .C./J. Reports 1982, para. 13), and there is no
visible evidence of particular geographic circumstances producing any
such effects.

37. When States claimed and obtained exclusive jurisdiction over an
expanse of water up to the 200-mile limit, they were able to assume that this
aquatic zone had effaced the continental shelves where they exist physi-
cally, or at least that the water takes priority over the sea-bed and subsoil ;
they chose the vague notion of the equity of the result with the wording of
the 1982 Convention, a new equity conducive to compromise solutions for
negotiators and ex aequo et bono decisions for judges. So long as equity was
conceived as the application of a rule of law prescribing recourse to
equitable principles, it was distinguishable from arbitrariness and ex aequo
et bono. As each contentious case has its own characteristics, the judge’s
work was performed within the bounds of the application of legal rules
to the facts ; even if Article 6 of the 1958 Convention left room for an
assessment of the effect of special circumstances, that assessment re-
mained under control. By introducing disorder into the conception of
equitable principles, and freedom for the judge to pick and choose relevant
circumstances and criteria, the Court, in the Judgment of February 1982,
and the States participating in the Third United Nations Conference, by
the Convention of December 1982, have given equity in maritime delimi-
tation this doubtful content of indeterminate criteria, methods and cor-
rections which are now wholly result-oriented. A decision not subject to
any verification of its soundness on a basis of law may be expedient, but it
is never ajudicial act. Equity discovered by an exercise of discretion is not a
form of application of law.

38. Admittedly, the Judgment of the Chamber has criticized the Parties’
attempt to catalogue equitable principles and present them as settled,
generally applicable principles of positive international law. But the argu-

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GULE OF MAINE (DISS. OP. GROS) 383

ment in paragraphs 192 ff. of the Judgment on principles, criteria and
methods merely recapitulates the Parties’ contention as to freedom of
choice in identifying what is equitable, only changing the terminology, and
we know from Mr. Justice Holmes what to think of the veil which words
cannot supply (para. 2, above). The history of the case-law between
December 1969 and February 1982 shows that the Court has changed its
opinion. For the time being let us note that, for the Court and for this
Chamber, equity within the meaning of the decisions of 1969 and 1977 is
rejected and that what is today called equitable, as in the 1982 Judgment, is
no longer a decision based on law but an appraisal of the expediency of a
result, which is the very definition of the arbitrary, if no element of control
is conceivable. The way in which it has been maintained and accepted that
anything could be presented as a relevant factor to be thrown into the
balance of equities is an abuse of the word “relevant”, and renders the
judge’s mission impossible, except as a conciliator, which is a role he has
not been asked to fill. The contradiction between the law as set forth in the
1969 Judgment and confirmed by the 1977 Decision, and the legal vacuum
resulting from the 1982 Convention as to the delimitation of a 200-mile
zone comprising the continental shelf, is flagrant, but that is precisely what
goes to make a reversal of precedent, so one must examine the Judgment of
the Chamber on the merits and the logic of its own reasoning. And it is this
bundling together of all notions of equity in the Judgment of the Chamber
which is the central point of the reasoning used to justify the result
obtained.

39. The Chamber has taken a position on the way in which equity is to
play a part in its judgment on the delimitation of the maritime areas at
issue, but without defining a concept of equity. As a result of the freedom
of choice of criteria — another word which can mean very different things
— methods and corrections, which it is sought to justify by the notions of
equality, proportionality and an equitable result, the Chamber at each
point in its reasoning advances ground after ground in order to establish,
and then substantiate, an equitable result ; but all the words used lack the
content with which circumstances and the law provide a judge as a neces-
sary basis for his judgment. It is no more conclusive to say that a result is
equitable than to say that it is just, if the judge does not refer to an order of
equity or of justice. In 1969 the Court decided on the application of the
“rule of equity” in the particular case of delimitation of the continental
shelf (1969 Judgment, para. 88) ; equity cannot be considered as a means of ©
securing equality, proportionality and an end-purpose, all at the same
time. When a judge wishes to ensure equality or equivalence, equality being
achievable only within the same plane, he can draw inspiration from the
frequently quoted formula in the Judgment of 15 December 1949 in the
Corfu Channel case : “what the Court, in the circumstances, has described
as a true measure of compensation and the reasonable figure of such
compensation” (quoted in the 1969 Judgment, also in para. 88 ; emphasis
added) ; he has to weigh up the points of fact and the legal consequences
which he can deduce from them so that his decision can ensure an equi-

141
GULF OF MAINE (DISS. OP. GROS) 384

valence between claims reduced to their true value. Such research implies
recourse to points of reference, sometimes called parameters, without
which the judge would exceed his role. By accepting that the continental
shelf is no longer a real area of the sea-bed and subsoil, but that to a
distance of 200 miles it is deprived of its natural specificity, the Chamber
has been solely ‘dividing water. The destruction of the concept of natural
prolongation means that there is no longer anything left to measure, and
the link between the land and the subsoil and even the water column has
lost all significance. Equity by equivalence between two maritime elements
can, in the new legal vacuum, be effected by equal division, but that is as far
as the search for an elusive equity can be taken. The 1969 Judgment
confined equality exclusively to the division of overlaps of limited extent —
nothing more than that ; whereas, from the outset of its reasoning right up
to its conclusion, the present Judgment adds to this the continual deploy-
ment of a concept of equity in proportionality and a concept of equity in
the result. Proportionality and the equitable result are set up as general
principles, and therefore as rules for any delimitation, and one cannot see
why that should not be extended to the domain of international respon-
sibility, where the notion of a true measure of compensation has always
existed. It is a decision which has serious consequences and it is all the more
regrettable in that, in this case, it is unjustified.

40. The Permanent Court of International Justice and the International
Court of Justice never directly decided a case on the basis of equity up to
the Judgment of 1969, and it would seem that this was due to prudence on
the part of judges who were well aware of the difficulties in this connection.
It was only by brief allusions that the two Courts showed their awareness of
the existence of the problem, and their wisdom becomes all the more
apparent today when one contemplates the pass to which we have come.
The Court in 1969 evinced the same caution but, called upon as it was to
give fairly precise indications so that a negotiation which had failed should,
following its judgment, succeed, it had, to accomplish the task defined by
the Special Agreement, to develop a concept of equity, which it set forth in
12 paragraphs ; this was unusual, as the Court normally determines the law
without elaborating the theory, but this was what had been asked of it. The
following year, in the Barcelona Traction, Light and Power Company,
Limited case U.C.J. Reports 1970, paras. 92-102), the Court again took the
traditional prudent approach and, following several considerations rela-
ting to the case, ruled out the application of equity, though saying that, “as
in all other fields of international law, it is necessary that the law be applied
reasonably” (para. 93), which does not go very far, and more or less
amounts to the assimilation of the equitable to the reasonable, the word
used in the 1969 Judgment. The 1974 Judgment on Fisheries Jurisdiction
had to examine the problem of the distribution of resources between States
concerned and mentioned the problem of equity when the Court repeated
after the 1969 Judgment :

“It is not a matter of finding simply an equitable solution, but an

142
GULF OF MAINE (DISS. OP. GROS) 385

equitable solution derived from the applicable law” (1. CJ. Reports
1974, p. 33, para. 78, and p. 202, para. 69).

The Court then considered an equitable distribution of fishery resources
(para. 78) on the basis of quotas, but it finally declined to balance up the
interests of the States concerned, in the absence of sufficient information
and usable parameters (pp. 32 and 201). The Court’s refusal in 1974 to
engage in a distribution of fishing quotas already showed that this role is
not an easy one for a court of law to assume. The Court also ruled out the
notion of the exceptional dependence of a State on economic resources, as
it was also to do in its 1982 Judgment. It will be recalled that in 1977 the
Court of Arbitration summed up the role of proportionality in unequivocal
terms :

“It is rather a factor to be taken into account in appreciating the
effects of geographical features on the equitable or inequitable char-
acter of a delimitation, and in particular of a delimitation by appli-
cation of the equidistance method” (paras. 99 and 100-101).

The Chamber, on the contrary, has considered it essential to correct its
median line at the exit from the Gulf, established from basepoints on
opposite coasts, using a calculation of proportionality based on all the
coasts of the Gulf and then recalculated to attenuate it, without reference
to any particular geographical feature the influence of which might create a
distortion which would be considered inequitable, the operation being
carried out at the judge’s own discretion and from a view of equity, known
only to himself at present, which is cloaked in the word “correction”.

41. The danger which the two Courts had throughout their history
managed to avoid is confronting us today. Their prudence was necessary,
because it was clear that an inordinate use of equity would lead to gov-
ernment by judges, which no State would easily accept (cf. .C.J. Reports
1974, p. 149, dissenting opinion, para. 34). The advice on the application of
equity given to the Parties by the 1969 Judgment has been replaced in the
1982 Judgment and the Chamber’s Judgment by a system of equity erected
into a doctrine separate from law, one which is no longer an application of
law. It is, in short, a law unto itself, where each case is exposed to the
application of any imaginable criteria, methods and corrections conducive
to a result which the disappearance of rules leaves to the discretion of each
tribunal. But, while it is true that many rules of international law are
drafted as principles of conduct rather than norms, to interpret them in
accordance with the law is one thing, whereas it is a very different matter to
replace them by an equity which lacks all general doctrine and varies from
case to case not only in accordance with the circumstances — for that is
always so — but in accordance with whatever the judge may choose to dub
an equitable result. In 1977, Professor H. Briggs, in a declaration appended
to the Decision, foresaw the

“threat that the rule of positive law expressed in Article 6 will be

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GULF OF MAINE (DISS. OP. GROS) 386

eroded by its identification with subjective equitable principles, per-
mitting attempts by the Court to redress the inequities of geography”
(Cmnd. 7438, p. 126).

Controlled equity as a procedure for applying the law would contribute to
the proper functioning of international justice ; equity left, without any
objective elements of control, to the wisdom of the judge reminds us that
equity was once measured by “the Chancellor’s foot” ; I doubt that inter-
national justice can long survive an equity measured by the judge’s eye.
When equity is simply a reflection of the judge’s perception, the courts
which judge in this way part company from those which apply the law.

42. The foregoing observations show how far I am from the Chamber’s
reasoning on all points in this case. The same is true, accordingly, as
regards the result of that reasoning, 1.e., the delimitation line, and I have
not voted for the operative paragraph, any more than for the reasoning
behind it. A distinction must however be drawn : since equity is now a
matter of each judge’s opinion, I do not maintain that the Chamber’s line,
or any of the lines presented during this case, is less equitable than the one
presented by myself on the map attached to this opinion. I voted against
the Chamber’s line because, unless coincidence or some miraculous chance
has made of it the one and only equitable line — which is presuming a great
deal —, the means employed in its production are in any case incompatible
with what survives of the law applicable to such a delimitation, in parti-
cular the equal division of overlaps and equidistance as a method of
achieving that equality. It is this that prompts me to append a map (see
p. 390) illustrating the line I considered to effect an equal division, in the
geographic circumstances, of the areas in issue between the Parties, with
the sobriety appropriate to a proposal the aim of which is to show how the
much-reviled equidistance method provided a reasonable solution to the
Parties’ request for the separation of their respective continental shelf and
fishery zones (cf. 1977 Decision as regards the Atlantic sector, where
equidistance was applied subject, after lengthy reflection, to a correction :
paras. 237-252).

43. To speak briefly of the role of equidistance, it is necessary to go back
to the 1958 Convention which is in force between the Parties so far as the
continental shelf is concerned and, in that connection, indicate that the
construction of its Article 6 presented by the Judgment is not well-
founded. President Sir Humphrey Waldock, in his above-quoted lecture,
said :

“Article 6 of the Geneva Convention on the Continental Shelf of
1958 had provided that, in the absence of agreement, the continental
shelf boundary in the case both of ‘opposite’ and of ‘adjacent’ States
should be determined by the equidistance principle, unless another
boundary is justified by special circumstances.” (P. 11, emphasis
added.)

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GULF OF MAINE (DISS. OP. GROS) 387

This is the formula already found in the 1977 Decision, and these two
references should in my view suffice : as between opposite States and
adjacent States the difference is one solely of a geographical nature, and in
either case the “principle” of equidistance, said Article 6, is applicable, i-e.,
is the way to establish the delimitation. In 1969 the Court recognized that
equidistance was a sound method, but not the only one, and that others
could be utilized “in the application of equitable principles”, but it is to be
noted that this paragraph 85, which is never quoted in toto but only by the
selection of this or that convenient passage, is entirely devoted to the way
in which the States actually concerned should, in the eyes of the Court, set
about negotiating an agreement.

44. An equidistance line “every point of which is equidistant from the
nearest points on the baselines” is a unique line that depends only upon the
positions of the basepoints. So long as those positions are known there can
be no dispute as to the course of the line, and all technical treatises are
agreed on the principles of its construction. Furthermore, because the two
sets of basepoints of the two coasts continually interact on the line, the
determination of relevant basepoints on one coast is to some extent
dependent on the configuration of the other coast, so that where the coasts
are opposite, and provided that there are no incidental features like islands
a significant distance offshore, the equidistance line usually effects a
reasonably even division between them.

45. This line on page 390, below, is essentially an equidistance line
constructed from mainland basepoints. Such a line cannot be made to pass
through Point A, and consequently the line starting at Point A follows a
neutral course perpendicular to the coastal front of Maine until it inter-
sects the equidistance line. For the construction of the equidistance line the
Canadian Brier, Tuscet and Cape Sable Islands and the United States
Great Wass, Mount Desert and Vinalhaven Islands are all treated as part
of the mainland. No account is to be taken of Nantucket or the other
islands and islets south of Cape Cod, or of Seal Island off Nova Scotia. This
equidistance line turns to the south-east at a point a few miles south-east of
a line between Cape Cod Elbow and Cape Sable. It crosses Georges Bank
about 1414 miles west of the Chamber’s line, and intersects the Canadian
200-mile limit about 29 miles from the terminus of the Chamber’s line.

46. The 1958 Convention on the Continental Shelf posits an equidis-
tance/special-circumstances rule, a single rule which is clear : if there are
no special circumstances, equidistance must be applied. The 1969 Judg-
ment and the 1977 Decision were based on that rule and interpreted it in
the desire to seat international law firmly on a concept of rigour in the
application of an equity dependent on that existing law. When the Judg-
ment of 1982 decided, in paragraphs 109 and 110, to summarize the
development of customary law on continental shelf delimitation, it took

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GULF OF MAINE (DISS. OP. GROS) 388

sides in the combat against the idea of equidistance by “as a first step”
depriving it of any “preferential status” as a method, thus creating for
negotiators and, subsequently, judges something like a thought prohibi-
tion. This ban is now renewed by the Judgment of 1984. The difference
between the international law on the continental shelf of 1958 and the
swerve to a new direction in 1982 is therefore fundamental. It would seem
that the idea of conducting a preliminary examination in terms of the
equidistance method is so feared that it has to be proscribed. It is difficult
to grasp the necessity of such an a priori opposition to the very notion of
equidistance having any useful role to play in searching for an equitable
solution.

47. So far as its doctrine is concernedg the present Judgment can be
summed up in four words : the result is equitable. This is tantamount to
expecting States that come to the Court to accept this new basis of the
function of the judge as one freed from the positive law he is charged to
apply. The 1969 Judgment and the 1977 Decision had erected guardrails to
the use of the concept of equity ; these the 1982 Judgment and the present
one have thrown down. The Court, in its Fisheries Judgment of 1951, had
carefully limited its ruling to the particular character of the situation. The
Chamber has sought to make a contribution to bringing the conventional
law on delimitation up to date, but this, I feel, runs counter to the Court’s
judicial task, as Charles De Visscher pointed out in 1963 :

“The function of interpretation is not to perfect a legal instrument
so as to adapt it more or less exactly to what one may be tempted to
envisage as the full attainment of a logically postulated objective, but
to shed light on what the parties actually intended.”

The course taken since February 1982 has been to indulge in an equity
beyond the law, detached from any established rules, based solely on
whatever each group of judges seised of a case declares itself able and free
to appreciate in accordance with its political or economic views of the
moment. This is to transform the International Court of Justice into a
court of equity, as Judges Sir Arnold McNair and Sir Gerald Fitzmaurice
had warned in their time. Since 1982 we have been witnessing not merely a
new trend in jurisprudence but a different manner of settling inter-State
disputes.

48. Like that of the Court in 1982, the Judgment of the Chamber has
attempted to construct, in support of an unsuccessful codification of
maritime delimitation, a doctrine of the equitable result, demonstrated by
the progression of the reasoning through the contradictions it seeks to
efface. The decision’s apparent refusal to take account of the natural
resources of the areas to be delimited gives way in the closing paragraphs
238, 239 and 240 to recognition by the Chamber that the use of those
resources is a major concern and the expression of its hope that the Parties
will find the compromise solution offered them satisfactory to their inter-
ests. By thus assimilating a procedure which continues to bear the stamp of

146
GULF OF MAINE (DISS. OP. GROS) 389

the 1982 Convention, the Chamber adds to the Court’s case-law one more
consensus decision of the type whose regrettable effects I recently exposed
(“La recherche du consensus dans les décisions de la Cour internationale
de Justice”, Festschrift fir Hermann Mosler, 1983, p. 351 ; esp. pp. 357-
358). Again, consensus here isjust another word for a compromise, the very
type of transaction in which the Parties had formally requested the Cham-
ber not to engage, calling upon it to decide “in accordance with the
principles and rules of international law applicable in the matter as
between the Parties” (Special Agreement, Art. IE, para. 1). This is not, in
my opinion, a judicial method of work enabling those problems to be dealt
with that are directed to a court of law and not to an amicable concilia-
tor.

(Signed) André Gros.

147
GULF OF MAINE (DISS. OP. GROS) 390

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148