                     599

                                   DISSENTING OPINION OF JUDGE SALAM

                     [Original English Text]

                        Vote against the operative part of the Judgment — Disagreement with the
                     reasoning of the Court concluding that no obligation to negotiate can be inferred
                     from the documents presented by the Parties — Agreement with the conclusion
                     that the conditions for the application of the principles of estoppel, acquiescence
                     and legitimate expectations are not satisfied — Existence of an obligation of
                     conduct and not an obligation of result.

                         1. I disagree with the Court’s Judgment on fundamental aspects of its
                     analysis of a number of documents presented by the Parties, and the con-
                     clusions it reaches concerning the “obligation to negotiate” which Bolivia
                     claims to exist. It is therefore with regret that I am voting against the
                     operative part of the Judgment, and I append this dissenting opinion to
                     explain my position.
                         2. I should note first of all that, in my opinion, one of the main fea-
                     tures of an “obligation to negotiate” is that it is, by its very nature, of a
                     limited scope. As Michel Virally wrote, “in assuming an obligation to
                     negotiate, a State reserves the right to disagree — and therefore the right
                     to prevent a settlement — on the sole condition that it acts in good faith,
                     which may be difficult to verify” 1. Of course, this also explains the low
                     threshold of persuasion which is required, in my opinion, to demonstrate
                     the existence of an intention to be bound to negotiate. Such an intention
                     may be inferred from a number of factors : first, the context and in
                     particular the existence of a cause justifying the intention to be “bound
                      to negotiate” ; next, the actual terms of the various instruments which
                      reflect that intention ; and finally, the practice subsequent to those instru-
                     ments.
                         3. As the Court has noted on numerous occasions, “international
                     agreements may take a number of forms and be given a diversity of
                     names” (see, for example, Maritime Delimitation and Territorial Questions
                     between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissi‑
                     bility, Judgment, I.C.J. Reports 1994, p. 120, para. 23). The question
                     whether Parties have concluded an international agreement is therefore
                     one of substance rather than form. The Court has referred on this point
                     to Article 2, paragraph 1 (a), of the Vienna Convention on the Law of
                     Treaties of 23 May 1969, which provides that for the purposes of that
                     Convention, “‘[t]reaty’ means an international agreement concluded
                     between States in written form and governed by international law,
                        1 M. Virally, “Panorama du droit international contemporain: cours général de droit

                     international public”, Collected Courses of the Hague Academy of International Law, 1983,
                     Vol. 183, p. 240.

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                     600 	      obligation to negotiate access (diss. op. salam)

                     whether embodied in a single instrument or in two or more related instru-
                     ments and whatever its particular designation”. It is recognized in par-
                     ticular that an exchange of letters may constitute an international
                     agreement creating rights and obligations for the parties involved (I.C.J.
                     Reports 1994, p. 122, para. 30).
                        4. Bolivia has ascribed particular importance to the Notes exchanged
                     by Alberto Ostria Gutierrez, the Bolivian Ambassador to Chile, and
                     Horacio Walker Larrain, the Chilean Minister for Foreign Affairs, on
                     1 June and 20 June 1950, respectively. I disagree with the Court’s analysis
                     of those Notes, for the following reasons.
                        5. In his Note of 1 June 1950, the Bolivian Ambassador referred to a
                     number of declarations by Chilean officials on the issue of negotiation
                     with Bolivia and addressed the Chilean Minister as follows :

                            “With such important precedents [ . . . ] that identify a clear policy
                          direction of the Chilean Republic, I have the honour of proposing to
                          His Excellency that the Governments of Bolivia and Chile formally
                          enter into direct negotiations to satisfy Bolivia’s fundamental need to
                          obtain its own sovereign access to the Pacific Ocean, solving the prob-
                          lem of Bolivia’s landlocked situation on terms that take into account
                          the mutual benefit and genuine interests of both nations.” (Judgment,
                          para. 51 ; emphasis added.)

                       6. In his Note of reply of 20 June 1950, the Chilean Foreign Minister
                     acknowledges receipt of Bolivia’s Note and states the following :

                             “From the quotes contained in the note I answer, it flows that the
                          Government of Chile, together with safeguarding the de jure situation
                          established in the Treaty of Peace of 1904, has been willing to study
                          through direct efforts with Bolivia the possibility of satisfying the aspi-
                          rations of the Government of Your Excellency and the interests of
                          Chile.
                             At the present opportunity, I have the honour of expressing to
                          Your Excellency that my Government will be consistent with that posi‑
                          tion and that, motivated by a fraternal spirit of friendship towards
                          Bolivia, is open formally to enter into a direct negotiation aimed at
                          searching for a formula [. . .] that would make it possible to give Bolivia
                          its own sovereign access to the Pacific Ocean, and for Chile to obtain
                          compensation of a non-territorial character which effectively takes into
                          account its interests.” (Ibid., para. 52 ; emphasis added.)
                        7. These Notes were drafted by persons who must be regarded as rep-
                     resenting and capable of committing their State, merely by virtue of exer-
                     cising their functions. They were subsequently published. We must
                     therefore consider the ordinary meaning to be given to their terms in their

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                     601 	      obligation to negotiate access (diss. op. salam)

                     context, in accordance with Article 31, paragraph 1, of the Vienna Con-
                     vention on the Law of Treaties.
                        8. It is evident from the wording of the Notes exchanged that, at the
                     time they were drafted, the two States considered that negotiations with a
                     view to concluding an agreement that would confer reciprocal benefits on
                     both Parties were the only feasible way of attempting to satisfy Bolivia’s
                     aspirations. It is also clear from the terms of the Notes that they express
                     the core of the undertaking to which the Parties had consented, namely to
                     “formally enter into direct negotiations”. The Notes identify the aim of
                     the negotiations agreed on : to confer “mutual benefit” on both Parties.
                     On this point, it was understood that the benefit sought by Bolivia —
                     obtaining “its own sovereign access to the Pacific Ocean” — was identi-
                     fied in advance of the negotiations. In return, Chile would receive
                     “compensation of a non-territorial character which effectively takes into
                     account its interests”. Let us here underline that Chile itself acknowledges
                     that, in June 1950, it was “attracted by the possibility of an agreement
                     with Bolivia in which Bolivia, in return for sovereign access to the sea,
                     would allow the waters of Lake Titicaca and other highland lakes to be
                     channelled into Chile to be used for irrigation and hydroelectric power
                     production” (Rejoinder of Chile, para. 1.14). It was in this context and
                     with a view to fulfilling this objective that Chile agreed to be bound to
                     negotiate with Bolivia.

                        9. I would also point out that Chile’s Note was itself a response to
                     Bolivia’s Note and, in so far as it reproduced the core terms of the under-
                     taking proposed by Bolivia, it cannot be regarded, as Chile claims, as a
                     counter-proposal requiring any response from the Applicant.

                         10. In light of the foregoing, I conclude that the passages cited from
                     the Notes exchanged in 1950, taken in their ordinary meaning and in their
                     context, and given that the persons who drew them up had the capacity
                     to commit their respective States, should have been interpreted by the
                     Court as establishing an agreement between the Parties on the need to
                     negotiate on the question of granting Bolivia sovereign access to the
                     Pacific Ocean.
                         11. In fact, in the context of the many exchanges on the subject of
                     Bolivia’s landlocked situation that have taken place between Bolivia and
                     Chile since the 1904 Treaty, it is my view that it was with the 1950 exchange
                     of Notes that an “obligation to negotiate” crystallized between the
                     Parties.
                         12. This interpretation is confirmed by the Parties’ subsequent
                      practice, and in particular by the reference to the Note of 20 June 1950
                       made by the Chilean Ambassador in La Paz, Manuel Trucco, in a memo-
                      randum of 10 July 1961 addressed to the Bolivian Foreign Minister
                      (Counter-Memorial of Chile, Vol. 3, Ann. 158). In this memorandum, the
                      Chilean Ambassador says that “Chile has always been open (translated

                     98

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                     602 	      obligation to negotiate access (diss. op. salam)

                     by Bolivia as “been willing”) . . . to study, in direct dealings with Bolivia,
                     the possibility of satisfying its aspirations and the interests of Chile”. He
                     adds that

                          “Note number 9 of [the Chilean] Ministry of Foreign Affairs, dated
                          in Santiago on 20 June 1950, is a clear testimony (translated by Bolivia
                          as “clear evidence”) of those purposes”,
                     and continues :
                             “Through it, Chile states that it is ‘open formally to enter into a
                          direct negotiation aimed at searching for a formula that would make
                          it possible to give Bolivia its own sovereign access to the Pacific Ocean
                          (translated by Bolivia as “expresses having ‘full consent to initiate as
                          soon as possible, direct negotiations aimed at satisfying the funda-
                          mental national need of own sovereign access to the Pacific Ocean’”),
                          and for Chile to obtain compensation of a non‑territorial character
                          which effectively takes into account its interests.’” (Judgment,
                          para. 55.)

                        13. The Bolivian Minister for Foreign Affairs replied to this memoran-
                     dum on 9 February 1962 (Memorial of Bolivia, Vol. II, Ann. 25). The
                     Minister’s reply states that, for Bolivia, the Trucco Memorandum con-
                     firmed that Chile’s willingness to negotiate with Bolivia was based on
                     “communication number 9, dated Santiago, 20 June 1950”. Bolivia also
                     added that, for the purpose of reaching an agreement, the Bolivian Gov-
                     ernment expresses
                          “its full consent to initiate, as soon as possible, direct negotiations
                          aimed at satisfying the fundamental national need of its own sover-
                          eign access to the Pacific Ocean, in return for compensation that,
                          without being territorial in character, takes into account the recipro-
                          cal benefits and effective interests of both countries” (Judgment,
                          para. 56).
                     The circumstances of the case are also significant here. Chile had a direct
                     reason to renew its undertaking to negotiate with Bolivia : to dissuade
                     Bolivia from raising the issue of its sovereign access to the Pacific Ocean
                     in the context of a planned Inter-American Conference focusing on arms
                     limitation (Counter-Memorial of Chile, para. 6.23).
                        14. Given the terms used and the context in which these texts were
                     drafted, the exchange consisting of the Trucco Memorandum and Boliv-
                     ia’s response to it should be interpreted as renewing an agreement to
                     negotiate between the Parties. I would point out here that Chile’s argu-
                     ments that the Trucco Memorandum was not an “official note” and was
                     unsigned are unconvincing, since the Memorandum was communicated
                     to Bolivia through official channels and contained “an exposition of
                     Chile’s views at that time” (Counter-Memorial of Chile, para. 6.25). I

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                     603 	       obligation to negotiate access (diss. op. salam)

                     would add that the fact that Bolivia took six months to send a Note
                     responding to receipt of the Trucco Memorandum does not as such pre-
                     clude a meeting of minds between the Parties. I consider that the Trucco
                     Memorandum and Bolivia’s follow-up Note constitute, in any event, rel-
                     evant subsequent practice confirming the agreement to negotiate resulting
                     from the 1950 exchange of Notes.

                        15. I would also note that on 8 February 1975, the Bolivian and
                      hilean Presidents met and agreed to a joint declaration (the so-called
                     C
                     “Charaña Declaration”), where it is stated that
                           “[b]oth Heads of State, within a spirit of mutual understanding and
                           constructive intent, have decided (translated by Chile as “have
                           resolved”) to continue the dialogue, at different levels, in order to
                           search for formulas (translated by Chile as “seek formulas”) to solve
                           the vital issues that both countries face, such as the landlocked
                           situation that affects Bolivia, taking into account the mutual interests
                            (translated by Chile as “their reciprocal interests”) and aspirations of
                            the Bolivian and Chilean peoples” (Judgment, para. 62 ; emphasis
                            added).
                        16. The wording of this declaration shows that the two Parties did not
                     consider, in 1975, that the negotiations between them had gone far
                     enough. It shows their intention to continue the negotiations in order to
                     resolve, among other things, “the landlocked situation that affects
                     Bolivia”.
                        17. In my opinion, Chile’s undertaking to negotiate with Bolivia a
                     solution to its landlocked situation is also confirmed by a number of uni-
                     lateral declarations. And, it is recognized that declarations taking the
                     form of unilateral acts, concerning legal or factual situations, may have
                     the effect of creating legal obligations (see Nuclear Tests (Australia v.
                     France), Judgment, I.C.J. Reports 1974, p. 267, para. 43) where the per-
                     son making the declaration is capable of committing the State (Armed
                     Activities on the Territory of the Congo (New Application: 2002) (Demo‑
                     cratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility,
                     Judgment, I.C.J. Reports 2006, p. 27, para. 46).
                        18. I will focus here on the declaration which I consider the most rele-
                     vant, since it clearly asserts, or at the very least confirms, Chile’s under-
                     taking to negotiate with Bolivia. It is a letter sent by the Chilean President
                     to his Bolivian counterpart. On 18 January 1978, the Chilean President,
                     Augusto Pinochet Ugarte, wrote a letter to his Bolivian counterpart,
                     President Hugo Banzer Suárez, in which he used particularly forceful lan-
                     guage (Counter-Memorial of Chile, Vol. 4, Ann. 236). Seeking to reassure
                     the latter following Peru’s observations on Chile’s proposition, Presi-
                     dent Pinochet writes to his counterpart: “I reiterate my Government’s
                     intention of promoting the ongoing negotiation aimed at satisfying the
                     longings of the brother country to obtain a sovereign outlet to the Pacific
                     Ocean.” He reaffirms that what is at stake are “negotiations that we are

                     100

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                     604 	      obligation to negotiate access (diss. op. salam)

                     committed to”. Referring to earlier negotiations, the President says that
                     “[i]n all of those meetings an agreement to pursue negotiations was
                     reached”. He then underlines his “purpose to boost the negotiations
                     aimed at granting Bolivia a sovereign outlet to the Pacific Ocean through
                     the appointment of Special Representatives”.

                        19. These words clearly reflect Chile’s intention to fulfil its undertaking
                     to negotiate with Bolivia, and show that negotiations have actually been
                     ongoing. I would also point out that the language used by the Chilean
                     President is both more precise and stronger than that used by the Norwe-
                     gian Foreign Minister, Mr. Ihlen, in the case concerning the Legal Status
                     of Eastern Greenland (Denmark v. Norway), which the PCIJ deemed to
                     be a “promise [that] was unconditional and definitive”, and which led it
                     to conclude that “as a result of the undertaking involved in the Ihlen dec-
                     laration . . . Norway [wa]s under an obligation to refrain from contesting
                     Danish sovereignty over Greenland as a whole, and a fortiori to refrain
                     from occupying a part of Greenland” (Judgment, 1933, P.C.I.J.,
                     Series A/B, No. 53, pp. 69‑73).

                        20. However, the Chilean President was explicit about the — lim-
                     ited — scope of this undertaking to negotiate. He says that the view of his
                     Government is that “the bases of the Chilean proposal and accepted in
                     general terms by Bolivia, are the only viable and realistic way to satisfy
                     the longing of the brother country”, adding that he “could not, therefore,
                     propose a different alternative[,] [b]ut [was] confident that on these bases
                     it would be possible to achieve an agreement capable of being accepted by
                     Peru” (Counter-Memorial of Chile, Vol. 4, Ann. 236).
                        21. Chile has continued, until recently, to negotiate with Bolivia in
                     order to resolve the dispute over the latter’s claim to sovereign access to
                     the Pacific. Communications between the two States rarely broke down
                     completely, even when Bolivia suspended diplomatic relations with Chile
                     on 15 April 1962 and 17 March 1978.

                        22. In conclusion, it is my opinion that the 1950 exchange of Notes
                     constitutes an agreement setting out an obligation for the Parties to nego-
                     tiate. I also consider that the events which followed, in particular the
                     Trucco Memorandum, the Charaña Declaration, the letter of 18 January
                     1978 from the Chilean President to the Bolivian President, and Chile’s
                     participation in further rounds of negotiations (in particular, the period
                     of the so-called “fresh approach”, the Chilean-Bolivian mechanism for
                     political consultation introduced in the early 1990s, the 13‑Point Agenda
                     of July 2006 and the establishment in 2011 of a binational commission for
                     ministerial-level negotiations) constitute a set of actions from which it
                     may reasonably be inferred that Chile and Bolivia were bound by a con-
                     sistent obligation to negotiate on granting the latter sovereign access to
                     the Pacific Ocean.
                        23. Having failed to place the 1950 and 1961-1962 exchanges in their

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                     605 	      obligation to negotiate access (diss. op. salam)

                     historical context, and to give sufficient consideration to the existence of
                     a reason underlying Chile’s intention to be bound to negotiate, it is regret-
                     table that the Court did not reach the same conclusion.

                        24. I consider that my analysis on the existence of an obligation to
                     negotiate is all the more reasonable since the scope of such an undertak-
                     ing is limited, as I stated in the beginning of this opinion. Moreover, the
                     failure of a round of negotiations does not suffice in itself to infer that the
                     obligation to negotiate is extinguished.
                        25. I would add that I have reached this conclusion without reference
                     to the principles of estoppel, acquiescence and legitimate expectations,
                     since I do not believe that the conditions for their application are satisfied
                     in the present case and agree with the Court’s reasoning on the matter.
                        26. Having found that the Parties had undertaken to negotiate, the
                     next question is about the nature and scope of the undertaking given.

                        27. In this regard, I would note that Bolivia, first of all, claimed, in its
                     written pleadings, that Chile was under an obligation that had all the
                     features of an obligation of result. This is particularly evident from the
                     Memorial, in which it clearly stated that Chile’s obligation to negotiate
                     sovereign access to the sea “is more exacting than a general obligation to
                     negotiate under international law. In particular, Chile is under an affir-
                     mative obligation to negotiate in good faith in order to achieve a particu-
                     lar result ; namely, a sovereign access to the Pacific Ocean for Bolivia.”
                     (Memorial of Bolivia, Vol. 1, p. 97, para. 221.) It later added: “It is a
                     specific obligation under international law to agree upon a specific objec-
                     tive to achieve a particular result” (ibid., p. 98, para. 225).

                        28. Bolivia also maintained that Chile’s obligation to negotiate sover-
                     eign access to the sea for Bolivia “is of the same nature” as the obligation
                     laid down in Article VI of the Treaty on the Non‑Proliferation of Nuclear
                     Weapons, citing a passage from the Advisory Opinion on the Legality of
                     the Threat or Use of Nuclear Weapons, in which the Court states that
                     “[t]he legal import of that obligation goes beyond that of a mere obliga-
                     tion of conduct; the obligation involved here is an obligation to achieve a
                     precise result . . . by adopting a particular course of conduct, namely, the
                     pursuit of negotiations on the matter in good faith” (I.C.J. Reports
                     1996 (I), p. 264, para. 99). The Applicant also referred to the following
                     paragraph in the same opinion, where the Court talks about a “twofold
                     obligation to pursue and to conclude negotiations”, and contended that
                     in the present case, “both Parties have agreed to negotiate over a sover-
                     eign access to the sea, and their obligation to negotiate will terminate
                     only when an agreement is concluded materializing in concrete terms the
                     sovereign access to the sea” (Memorial of Bolivia, p. 119, para. 287).
                        29. Bolivia did, however, somewhat backtrack on this approach as the
                     proceedings continued, and particularly in its oral pleadings. It said in
                     very clear terms in the first round of pleadings that “Bolivia’s case is

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                     606 	        obligation to negotiate access (diss. op. salam)

                     remarkable in its modesty. All that it asks is for Chile to return to the
                     negotiating table.” (Verbatim record, CR 2018/6, p. 30, para. 30.) It even
                     went a little further in describing the content of the alleged obligation to
                     negotiate, and identified a series of “specific obligations” which that obli-
                     gation entailed (ibid., pp. 59‑60, para. 9) 2. It even stated that the obliga-
                     tion “does not require [Chile] . . . [to] reach an agreement with [it] at any
                     cost” (ibid., p. 60, para. 14).

                        30. However, the Applicant, referring to the exchanges and declara-
                     tions attesting, in its view, to the existence of an obligation to negotiate,
                     has affirmed that “[e]ach stage gave Bolivia renewed hope and confirmed
                     that the restoration of its status as a maritime State was indeed something
                     on which both States agreed” (ibid., p. 39, para. 28; emphasis added). It
                     also added that “the binary distinction between a simple obligation of
                     means and an obligation of result seems inadequate to clarify the nature
                     and scope of the obligation to negotiate” (CR 2018/10, p. 59, para. 7).

                        31. So although Bolivia softened its original position, it nevertheless
                     remained. Deliberately? It would seem so, ambiguous about the scope of
                     the obligation it invokes.
                        32. That said, it is indisputable that any obligation to negotiate that
                     may be recognized as incumbent on Chile cannot be an obligation of
                     result. This, moreover, is apparent from the Court’s Judgment on the pre-
                     liminary objection, in which it stated that “[e]ven assuming arguendo that
                     the Court were to find the existence of such an obligation [to negotiate],
                     it would not be for the Court to predetermine the outcome of any nego-
                     tiation that would take place in consequence of that obligation” (Obliga‑
                     tion to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary
                     Objection, Judgment, I.C.J. Reports 2015 (II), p. 605, para. 33).

                     (Signed) Nawaf Salam.

                        2 “Bolivia submits that the duty to negotiate under international law entails, at a

                     minimum, the following specific obligations:
                     (a) First, the duty to receive communications and proposals put forward by another State
                          concerning the adjustment of any matters of serious concern to that State.

                     (b) Second, the duty to consider any such communications or proposals, taking into
                         account the interests of the other State.
                     (c) Third, the duty to participate, in a considered and reasoned manner, in official meet-
                         ings to discuss such communications and proposals, if invited to do so.

                     (d) Fourth, the duty to look for ways of overcoming any problems that stand in the way
                         of resolution of the matter.
                       All this in good faith and in a timely manner.”

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DISSENTING OPINION OF JUDGE MORELLI

[Translation]

1. The two Special Agreements asked the Court to indicate “what
principles and rules of international law are applicable to the delimita-
tion as between the Parties of the areas of the continental shelf in the
North Sea which appertain to each of them ...”. It is quite clear that
the principles and rules that the Court was called upon to establish could
only be principles and rules which were binding for each of the two
parties to each Special Agreement vis-a-vis the other party. It follows
that the principles and rules which had to be the subject of the finding
requested of the Court were the principles and rules of general inter-
national law and not the principles and rules contained in the Geneva
Convention on the Continental Shelf of 29 April 1958 (and in particular
in Article 6 thereof), which Convention, not having been ratified by the
Federal Republic, was not as such binding upon it.

On this point [ entirely share the opinion of the Court. Unlike the
Court, however, [ think that in order to find the principles and rules
of general international law concerning the delimitation of the continental
shelf it might be useful, whenever the circumstances so require, to take
account of the Convention as a very important evidential factor with
regard to general international law, because the purpose of the Conven-
tion is specifically, at any rate in principle, to codify general international
law and because this purpose has been, within certain limits, effectively
realized.

In connection with the Convention it may be observed that it was
signed by the Federal Republic. This means that the Federal Republic
participated in a technical operation which, to the extent of the Conven-
tion’s avowed purpose of codification, consisted in the establishment of
general international law. By its signature the Federal Republic expressed
an opinion which, within the limits indicated above, may be qualified
as an opinio juris. But it was a mere opinion and not a statement of will,
which could only be expressed by ratification. For itis only by ratification
that the States signatories to a Convention express their will either to
accept new rules or, in the case of a codification convention, to recognize
pre-existing rules as binding.

The statement that the purpose of the Geneva Convention was, at
least in principle, to codify general international law is not contradicted,
in my view and contrary to the opinion of the Court, by the fact that

198

CONTINENTAL SHELF (DISS. OP. MORELLI) 198

Article 12 of the Convention recognizes the possibility of reservations
(including reservations to Article 6). For the power to make reservations
is entirely compatible with the codification character of a convention
or of a particular rule contained in a convention. Naturally the power
to make reservations affects only the contractual obligation flowing from
the convention; that obligation, that is to say the obligation vis-a-vis
the other contracting parties to consider the rule in question as a custo-
mary rule, is excluded in the case of the State making the reservation.

In this connection, sight must not be lost of the fact that the ambit
of any codification is necessarily subjectively limited: i.e., limited to the
States parties to the codifying convention. It is quite conceivable for a
particular provision of the convention, through the effect of reservations,
to be affected by a further limitation, in the sense that the obligation to
accept the codification is, in relation to that provision, excluded for
some of the parties, i.e., for those States which formulate the reservation.
This circumstance in no way constitutes an obstacle to considering the
provision open to reservation as a codification of general international
law.

It goes without saying that a reservation has nothing to do with the
customary rule as such. If that rule exists, it exists also for the State
which formulated the reservation, in the same way as it exists for those
States which have not ratified. The inadmissibility of the reservation is
not to be deduced from this, seeing that the reservation is intended to
operate solely in the contractual field, i.e., in relation to the obligation,
arising out of the convention, to recognize the rule in question. For
this same reason, no importance can be attached to the fact that those
States which do not ratify the convention, and which consequently
remain completely outside the contractual bond, have no possibility of
formulating a reservation.

Having clarified my point of view so far as concerns the value to be
ascribed to the Geneva Convention as evidence of general international
law, | shall now consider matters from the point of view of the latter,
i.e., from the same point of view as that adopted in the Judgment of
the Court. I shall mention the Geneva Convention only in order to note
in Article 6 it is, in substance and within certain limits, in conformity
with the rules of general international law with regard to the delimitation
of the continental shelf.

*
*

2. I think it convenient to start from a point which is generally recog-
nized, and which is not disputed by any of the Parties, namely the
existence of certain rights the subject-matter of which is the continental
shelf. It is not necessary, for the purposes of the present cases, to deter-
mine the nature, the content and the limits of those rights, which Article 2

199

CONTINENTAL SHELF (DISS, OP. MORELL}) 199

of the Geneva Convention (which Article reflects, it would seem, custo-
mary international law) qualifies as “sovereign rights [over the continental
shelf] for the purpose of exploring it and exploiting its natural resources”.

The rights in question belong to the various States considered indi-
vidually. The continental shelf cannot be conceived of, in the same way
as can the high seas, as something common to all States. It is necessary
in the first place to rule out any idea of a community participated in
by all States and having as its object the continental shelf in general.

But the idea of a community must also be exciuded with reference to
any given areas of the continental shelf, as a community limited to certain
States alone, those which have a given relationship with the area in
question. This is of course subject to the possible effect of an agreement
whereby two or more States might decide to make their respective areas
of the continental shelf common as between themselves.

Apart from this hypothetical case, which is perfectly conceivable, there
is no community between two or more States, the object of which is a
given area of the continental shelf. Without doubt a situation can exist
which gives rise to a problem of delimitation, namely the problem of
ascertaining how a certain area of the continental shelf ts already appor-
tioned among two or more States. This operation of delimitation has
nothing to do with the sharing out, among two or more States, of some-
thing common to those States.

In particular it must be denied that the North Sea continental shelf,
despite its geological unity, constitutes, or constituted, something com-
mon to all the coastal States. It is quite obvious that to affirm the exis-
tence of a community in this connection would impeach the legitimacy
of the bilateral delimitations, on an equidistance basis, carried out not
merely between Denmark and the Netherlands, but also between the
United Kingdom and the Netherlands, between the United Kingdom
and Denmark, between the United Kingdom and Norway, and between
Denmark and Norway. It should also be observed, with reference to
these last two delimitations, that the parties did not confine themselves
to applying the equidistance criterion, but did something more than that.
By the application of the equidistance criterion in relation to the coastlines
of the contracting States, leaving out of account the geological feature of
the “Norwegian Trough”, the effect of which is that the continental
shelf of Norway would, from the geological point of view, be made up of
a very narrow strip along the Norwegian coast, what was in substance
finally effected was a transfer of certain areas of the continental shelf in
favour of Norway. It is only by rejecting the idea of something held in
common that those areas, having regard to the said geological feature,
could be considered as appertaining to the other two contracting States,
to the United Kingdom and Denmark respectively.

If it is to be excluded that the North Sea continental shelf taken as a

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whole constitutes or constituted something held in common, such a régime
must, a fortiori, be excluded in respect of the south-eastern sector of the
North Sea (the sector bounded by the equidistance lines between Norway
and Denmark, and between the United Kingdom and the continent).
Even supposing an initial community to have existed among all the
coastal States of the North Sea in respect of the continental shelf of
that Sea, it is not clear how such a community could have been dissolved
merely in part, to give place to an objectively and subjectively narrower
community; and all this as a result, not of a collective agreement between
all the States participating in the community, but rather of a series of
bilateral agreements as between certain of those States, excluding the
Federal Republic.

3. Once the existence of a rule of general international law which
confers certain rights over the continental shelf on various States con-
sidered individually is admitted, the necessity must be recognized for
such a rule to determine the subject-matter of the rights which it confers.
This means, seeing that those rights are conferred on the different States
individually, that the rule in question must necessarily indicate the
criterion upon the basis of which the continental shelf is divided between
the different States.

It is quite possible to speak of a “rule” concerning the apportionment
of the continental shelf; but sight must not be lost of the fact that itis not an
independent rule but rather an integral part of the same rule which con-
fers upon different States rights over the continental shelf. It follows that
failure to indicate the criterion according to which the continental shelf
is apportioned would not constitute a true lacuna. A lacuna proper consists
in the absence of any legal rule governing a given relationship. In the
matter with which we are concerned, on the other hand, a legal rule is
admitted to exist: that rule is precisely the one which confers upon
different States, considered individually, certain rights over the con-
tinental shelf. Now if that rule did not indicate the criterion for appor-
tionment, it would be an incomplete rule. But, unlike other incomplete
rules which no doubt exist in the international legal system, this rule
is one the incomplete nature of which would have a most particular
importance, because it is the determination of the very subject-matter
of the rights conferred by the rule that would be omitted. Such an omission
would totally destroy the rule.

However this may be, I am of the view that a criterion for apportion-
ment is really provided by the law: as will be seen, it is a criterion which
it is possible to deduce from the very rule which confers on different
States certain rights over the continental shelf,

The rule, or, more correctly, the criterion for apportionment, can only
be a rule or criterion which operates automatically, so as to make it
possible to determine, upon the basis of such criterion, the legal situation
existing at any given moment. This requirement could not be satisfied by
the rule which the Court declares as the only rule governing the matter, a

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rule that would oblige the States concerned to negotiate an agreement in
order to delimit the continental shelf between themselves. Such a rule,
for so long as the agreement which it contemplates has not been concluded,
would allow a situation of uncertainty to persist with regard to the
apportionment of the continental shelf.

It must be pointed out in this connection that it would not be what
might be termed a subjective uncertainty, an uncertainty inherent in
almost all disputes; an uncertainty that can retroactively be dispelled
by a judgment delivered on the basis of the law in force. It would, on
the contrary, be an objective uncertainty, which it would not be possible
to dispel upon the basis of the law in force because such law would not
contain, in this connection, any immediately applicable material rule.
For that it would be necessary to wait until a special rule was created by
agreement between the States concerned. In the absence of such an
agreement, no State could treat the continental shelf area in question
as pertaining to itself.

4. The title upon which the right of a State over a certain area of the
continental shelf is based is the coutiguity (or adjacency) of that area to
the territory of the State concerned.

Since, as is also stated by Article | of the Geneva Convention, the
continental shelf is made up of the seabed and subsoil of the submarine
areas outside the area of the territorial sea, and since, furthermore, the
territory of a State comprises not merely the dry-land territory but also
the territorial sea, to speak of the contiguity of an area of the continental
shelf to the territory of a given State signifies the contiguity of that area
to the outer limit of the State’s territorial sea. This clarification is im-
portant, not only, as will be seen, for the purposes of delimitation, but
also for the case of the existence of a “trough”, contained, for its whole
breadth, within the bounds of the territorial sea of a State. Such “trough”
does not prevent the continental shelf lying beyond the “trough” from
being considered as adjacent to the State’s territory.

In this connection there may be noted a certain illogicality in the
wording of the Geneva Convention. Article 1 refers to “submarine
areas adjacent to the coast but outside the area of the territorial sea”:
the same Article goes on to refer to “similar submarine areas adjacent
to the coasts of islands’’. It is not clear how areas which are outside the
territorial sea can properly be qualified as adjacent to the coast. Probably
this is an inexact form of words employed to indicate, in fact, adjacency,
not to the coast, but rather to the outer limit of the territorial sea. More
correctly, Article 6 refers to adjacency “to the territories” of two or more
States.

5. The notion of contiguity points to a contact by the continental
shelf with the territory of a State: more precisely, a contact with the line
which marks the boundary of the territory of the State toward the high

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seas, a line which is identical with the outer limit of the territorial sea.
It is from that line that the continental shelf appertaining to the State
commences.

The criterion for determining the extent of the continental shelf which,
starting from that line, appertains to a State, by comparison with the
continental shelves appertaining to other States, can only be inferred
indirectly from the concept of contiguity itself. This concept postulates
the coincidence of the line of the boundary of the territory of a State
toward the high seas, and the line from which the continental shelf of
the State commences. Consequently, the criterion of contiguity cannot, in
itself, be used to determine points which do not fall on the said line, being
situate beyond it. Nevertheless it is possible, for the determination of
these, to infer from the criterion of contiguity another criterion: that of
proximity. On the basis of this criterion, there must be considered as
appertaining to a given State all points on the continental shelf which,
although not situated on the line delimiting the territory of the State, are
nearer to that line than to the line delimiting the territory of any other
State. In my view, there is nothing arbitrary about this deduction; it is,
on the contrary, a wholly logical one.

From the criterion of proximity, the passage is almost automatic to
that of equidistance, so that it could be said that the two criteria merge.
The criterion of proximity determines points constituting a surface. But
there are some points with respect to which the criterion of proximity
does not operate, and that because these points are not nearer to the
territory of one State than to the territory of another State, because
they are equidistant from the territories of the two States. These points
form the equidistance line, the line which constitutes the boundary
between the continental shelves of the two States. Points situate on one
side of this line, and consequently nearer to the territory of one of the
two States, are part of the continental shelf of that State; for the same
reason, points situate on the other side of the line appertain to the con-
tinental shelf of the other State.

6. As will be observed, I consider the rule of general international law
prescribing the equidistance criterion for the delimitation of the con-
tinental shelves of various States to be a necessary consequence of the
apportionment effected by general international law on the basis of
contiguity. 1 am therefore of the opinion that itis not necessary to ascertain
if a specific custom has come into existence in this connection. State
practice in this field is relevant not as a constitutive element of a custom
which creates a rule, but rather as a confirmation of such rule. Confirma-
tion of the rule is also provided, within certain limits, by the provisions
of the Geneva Convention.

So far as State practice is concerned, it should be observed that deli-
mitations effected by different States unilaterally have a greater impor-
tance than bilateral acts of delimitation. The latter, whether they con-
form to the rule or diverge from it, may simply amount to a manifestation

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of contractual autonomy in a field in which the contracting States have
freedom of disposition. Thus their evidentiary value for or against the
rule is very limited.

7. The criterion of equidistance is employed in Article 6 of the Geneva
Convention. The first paragraph of that Article refers to the case of two or
more States whose coasts are opposite each other,in which case the equidi-
stance line is more specifically characterized as a median line. Paragraph 2
follows the same equidistance criterion for the case of two adjacent
States. Nothing is said as to the relationship between two States which,
like Denmark and the Netherlands, are not adjacent, and which cannot
be considered to be opposite either.

It should be observed in this connection that the equidistance criterion
is in itself capable of being used in al! conceivable situations, even in
the relationship between two States in the situation of Denmark and the
Netherlands. Consequently, it is this general employment of the criterion
which, taking into account the reasons which justify it, should be con-
sidered as contemplated by the rule of general international law which
refers to that criterion.

So far as Article 6 of the Geneva Convention is concerned, inter-
pretation of that Article can, in my opinion, only lead to a similar con-
clusion. In other words, it must be considered that Article 6 of the Con-
vention too uses the equidistance criterion in a general way, even though,
according to its terms, it does not expressly indicate anything more than
two possible applications of that criterion.

With reference to the distinction between the case of opposite States
and the case of adjacent States, which is often made use of, and which is
the inspiration of Article 6 of the Convention, it should be added that this
is a distinction which is very mucha relative one. There are many cases,
actual or simply imaginable, with reference to which it would be difficult
to say whether they were cases of opposite States or adjacent States.

8. Article 6 of the Convention, both in paragraph | and paragraph 2,
refers, in order to determine equidistance, to ‘the nearest points of the
baselines from which the breadth of the territorial sea . . . is measured”.
It appears from the travaux préparatoires of the Conference that other
proposals had been made in this connection, consisting of reference
either to the low-water mark or to the high-water mark. These two
methods, as well as that finally adopted by the Convention, consisting of
referring to the baselines, are no more than different methods of deter-
mining what constitutes the coast of a State.

However, I consider that, for the delimitation of the continental shelf,
it is not correct to relate equidistance to the coast, whether this is deter-
mined in the way indicated in Article 6, or in some other way. (Of course,
quite a different problem is that of the delimitation, between two States,
of the territorial sea itself.) Consequently 1 consider that on this parti-

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cular point the Convention has diverged from general international law.

For, according to general international law, since the territory of a
State extends up to the outer limit of its territorial sea, which is the line
from which begins the continental shelf appertaining to that State, it is
necessarily to that line, as well as to the outer limit of the territorial sea
of another State, that reference must be made to determine the equidis-
tance line which constitutes the boundary between their respective
continental shelves.

It is quite possible that the application of this method might lead to
a result different from that produced by the method adopted in Article
6 of the Geneva Convention, which consists in referring to the baselines
from which the breadth of the territorial sea is measured. The difference
in the results obtained from the two methods is quite obvious, for
example, where there are two States lying opposite each other, in relation
to which the breadth of the territorial sea is determined in a different
way; this is so even where the coastlines of the two States are perfectly
straight. But, even apart from the way in which the breadth of the
respective territorial seas of the two States concerned is determined, a
difference between the results of the two methods may well be the con-
sequence of the configuration of the coastlines of the two States.

So far as concerns the relationship of Denmark and the Federal
Republic and of the Federal Republic and the Netherlands, it is certain
that the application of the method I consider correct gives a result
different from that to which reference of equidistance to baselines leads,
although that difference is very slight. In point of fact, even if the possible
consequences which the configuration of the coastlines of the three States
might have according as to one or other of the two methods of delimita-
tion is used be disregarded and it be consequently supposed that the
triangle resulting from the boundary line between Denmark and the
Federal Republic and the boundary line between the Federal Republic
and the Netherlands has always the same shape, there is no doubt that,
if the method which I consider correct be employed, such a triangle
would be situated further towards the centre of the North Sea, which
would result in a small advantage for the Federal Republic.

9. The equidistance rule does no more than indicate the way in which
the continental shelf is apportioned among different States; just as the
apportionment occurs automatically, so the equidistance rule, an expres-
sion, as has been seen, of that apportionment, also operates automatically.
There appertains to each State ipso jure a certain area of the continental
shelf, as determined by virtue of the equidistance criterion.

In the first place, it is not necessary, in order that a State may become
the owner of rights over a certain area of the continental shelf, for any

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CONTINENTAL SHELF (DISS. OP. MORELLI) 205

legal act to be performed for this purpose by the State concerned. There
is a difference here from what happens in the case of the territorial sea,
in respect of which there is attributed to each State the legal power to
determine its breadth, within certain limits, by means of a unilateral
legal act. The Convention on the Continental Shelf, in Article 2, para-
graph 3, states indeed: “The rights of the coastal State over the con-
tinental shelf do not depend on occupation, effective or notional, or on
any express proclamation.” It follows that it is incorrect to speak, as
Denmark and the Netherlands have done on several occasions, of validity
and opposability erga omnes of a delimitation effected by a State uni-
laterally, in accordance with the equidistance criterion. Unilateral
delimitation is not a legal act upon which the rights of the State over the
continental shelf depend, and of which the validity or invalidity might
be open to argument. Unilateral delimitation is simply a manifestation
of State conduct, to be considered as legitimate or otherwise according
to whether it is or is not in conformity with the apportionment of the
continental shelf automatically effected by international law.

10. Nor is it necessary, for the equidistance rule to be able to operate,
that an agreement be concluded on the question by the States concerned,
An agreement in conformity with the equidistance criterion does no more
than record a situation which has already arisen automatically; thus,
such an agreement has only a purely declaratory character. But inasmuch
as it is a matter of rights of which States can dispose freely, it is quite
possible for an agreement between the States concerned to diverge
from the equidistance criterion. In this case, the agreement has a consti-
tutive character, because it modifies the existing situation, as it results
from the automatic functioning of the equidistance rule.

None of this is contradicted, substantially, by the wording of Article
6 of the Geneva Convention. It is of course true that that Article, in
paragraphs | and 2, mentions agreement first, and thereafter, in case of
“absence of agreement’, the equidistance criterion. But this does not
by any means signify that logical and chronological priority is attributed
to agreement, in the sense that only in the absence of agreement can the
equidistance rule operate; this would confer on that rule the character
of an alternative rule. If the provisions of Article 6 were understood in this
sense, several questions could be raised, to which it would not be easy to
reply. At what moment would it be necessary to establish that the con-
dition of absence of agreement, to which the functioning of the equi-
distance rule is subordinated, is fulfilled? What is the legal situation
either before that moment or before the conclusion of an agreement if
any? Is it community? What would be the extent of the continental shelf
subject to such a community?

In fact, in referring to agreement, Article 6 simply means that the
States concerned are always free to delimit the continental shelf, by
means of an agreement, in the way they think most appropriate, even
so as to modify, if appropriate, the existing situation resulting from the

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CONTINENTAL SHELF (DISS. OP. MORELLI) 206

application of the equidistance rule. It is to this rule that there must be
attributed, even under Article 6, logical and chronological priority.

When it mentions agreement first, Article 6 adopts the point of view of
a court, or of any person or body who proposes to determine the existing
legal situation. In order to do this, it is necessary in the first place to
ascertain whether an agreement has been concluded by the States con-
cerned. If this is the case, there is nothing to do but hold such agreement to
be decisive, because the situation prior to the agreement, and resulting
from the equidistance criterion, is no longer in force. It is only in the
absence of agreement that the equidistance rule must be applied, by
finding for the apportionment effected by that rule, which has not been
modified by any agreement.

11. The equidistance rule, as a rule of general international law codified
in Article 6 of the Geneva Convention, is, as has been said, a rule which
operates automatically. This characteristic of the rule does not prevent
the possibility being imagined, from an abstract point of view, of its
being limited by one or more exceptions. But an exception-rule properly
so called would not be imaginable except as a rule also of an automatic
character. Such would be a rule which, by reference to certain possible
circumstances, precisely defined by the rule itself (for example, the
existence of an island having certain characteristics as regards its dimen-
sions and position, etc.), declared that in such a case the apportionment
is effected (still automatically) according to a criterion other than that
of equidistance, which criterion would also have to be specified by the
rule.

But no such exception-rule exists in general international law. Nor can
such a rule be considered to be contained in Article 6 of the Convention,
which, both in paragraph | and paragraph 2, declares the equidistance
criterion to be applicable ‘‘unless another boundary line is justified by
special circumstances”. With regard to this rule of the Convention, all
the Parties to the present cases have always referred to it as an “exception”
to the equidistance rule; the argument has been concentrated on what
might be called a quantitative aspect of the matter, namely the wider or
narrower scope of the so-called “exception”.

In my opinion, there is no question at all of a true exception: for the
simple reason that the special circumstances rule, as it is found in Article 6
of the Convention, is not capable of operating automatically. In the first
place, it does not specify in any way what are the circumstances which
would prevent the equidistance rule from operating. Secondly, nothing
is said as to the effect which the circumstances contemplated should
bring about, because the rule is no indication whatsoever of what delimi-
tation should replace that resulting from the equidistance criterion. The
determination of both these issues could only be made by agreement
between the States concerned, or by an arbitral award. So long as there

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CONTINENTAL SHELF (DISS. OP. MORELLI) 207

is neither agreement nor award the situation remains that which results
from the equidistance criterion.

It must be concluded on this issue that the equidistance rule is an
absolute rule, in the sense that it is not limited by any exception-rule
properly so called. Even the case of the existence of an island or pro-
montory which has an abnormal influence on the equidistance line, does
not by any means constitute an exception, because such a circumstance
does not in itself prevent the equidistance rule from operating.

In my opinion the Court ought first to have stated the equidistance
rule as a rule of general international law of an absolute nature (i.e., not
limited by any exception), adding that that rule was applicable to the
delimitation as between the Parties of the areas of the North Sea con-
tinental shelf appertaining to each of them. It follows (but this is a
consequence which it was not necessary to state expressly) that the
apportionment now existing is precisely that which results from equidis-
tance.

*
* *

12. The equidistance rule is a necessary logical consequence of the
apportionment of the continental shelf effected by international law by
virtue of contiguity. Any consideration of equity falls outside the rule
as such. It cannot be said that its purpose is to effect an equitable appor-
tionment, so that it will only operate in cases where its application leads
to an equitable result. Were it so it would be necessary to exclude entirely
the equidistance rule as a rule of law and to regard the rule governing
the apportionment of the continental shelf as something quite different.
Such rule would be the rule of equitable sharing out. Equidistance would
be but one possible method of arriving at the result of equitable sharing
out aimed at by the legal rule.

But the purported rule of equitable sharing out cannot be accepted.
Such a rule, as a rule the content of which is to refer the matter to
equity, could not automatically effect the sharing out of the continental
shelf among the various States. Such sharing out could only be the
consequence of an agreement between the States concerned or else of
an award which, being based upon equity, would not be a declaratory
but a constitutive award. Until the moment when the agreement was
reached or the award handed down there would be no apportionment.
The situation would be one of community; a hardly conceivable situation
which would be in contrast with the attitude of international law on this
subject.

13. All that I have just said does not mean that international law does
not concern itself at all with the equitable nature of the apportionment;
I am merely saying that considerations of equity cannot act so as to
prevent the operation, at any rate initially, of the equidistance rule.
The following is, in my view, the manner in which international law has
recourse, in this field, to equity.

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CONTINENTAL SHELF (DISS. OP. MORELLI) 208

In my opinion, the equidistance rule (an absolute rule, operating in
all cases) is accompanied by another rule, which is not an exception-rule
because it has an importance of its own. This latter rule envisages circum-
stances which exercise a certain influence on the application of the
criterion of equidistance, in the sense that such application produces
an inequitable result. The purpose of this rule is to correct such a result.
It must be pointed out here and now that in order for it to be possible
for this rule to operate it is not sufficient that just any divergence be
noticed between the result of applying the equidistance rule and an
absolutely equitable apportionment. On the contrary, there must be a
particularly serious discrepancy.

What is the content of the rule in question? In what way, in other
words, does the rule seek to attain its end?

In my opinion, the rule merely obliges the States concerned, in cases
where the circumstances envisaged occur, to negotiate among themselves
an agreement to revise the existing situation. In other words, the agree-
ment modifying the existing situation, an agreement which can always
be freely concluded, becomes, in the circumstances envisaged, a com-
pulsory act. It follows that until such time as a revision agreement is
concluded (or, failing agreement, an award is handed down on this
subject) the situation resulting from the application of the criterion of
equidistance must be considered as the situation in force.

I consider that it is the rule of general international law to which
I have just referred which underlies Article 6 of the Geneva Convention
when it provides that the equidistance line shall apply ‘unless another
boundary line is justified by special circumstances”. Seeing that the
special circumstances rule can only be brought into operation with the
agreement of the States concerned, it is precisely an agreement which
the rule envisages as the subject-matter of an obligation which it lays
upon the States concerned. Here too, it is a question of an agreement
for the revision of the situation resulting from the automatic application
of the equidistance rule, which, for the Convention also, constitutes the
primary rule.

14. It is not necessary to determine what circumstances can give rise
to a seriously inequitable application of the criterion of equidistance
and which for that reason may, by virtue of the rule to which I have
just referred, entitle a State to claim that the boundaries of its continental
shelf should be modified. What matters is not the circumstances as such
but rather the inequitable result to which they lead.

They may be geographical circumstances and also circumstances of
a different kind. Among geographical circumstances there may be recalled
the case, frequently mentioned, of a promontory or islet situated off the
coast of a State. It must further be recognized that the configuration of
the coastline of a State in relation to the coastline of another adjacent
State may also entail an inequitable application of the criterion of equidis-
tance. And it must be added that a circumstance having the same con-

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CONTINENTAL SHELF (DISS. OP. MORELLI) 209

sequence may consist in the configuration of the coastline of one State
in relation to the coastlines of two other adjacent States and in the
combined effect of the application of the criterion of equidistance to
the delimitation of the continental shelf of the first State in relation to
the continental shelves of each of the other two States. This is precisely
the situation which occurs in the present cases.

15. I would point out in this connection that there is no question now
of effecting an apportionment of the continental shelf among the Parties
to these cases ex novo and that it is not a question of how the boundary
lines must be drawn in order to arrive at such an apportionment: namely
whether the two boundary lines (German-Danish and German-Nether-
lands) must be drawn conjointly or else independently of each other.
It is not at all a question of drawing lines.

The problem supposes a certain apportionment already effected by
the automatic operation of the equidistance rule, the equitable or in-
equitable character of which apportionment has to be appraised. This
apportionment, characterized by equidistance lines delimiting on each
side the continental shelf of the Federal Republic, is a consequence of
the real geographical situation, a situation for which it is not possible
to substitute purely hypothetical situations. Admittedly, if one were
to start from the hypothesis that the Federal Republic constituted a
single State with Denmark, the result of applying the criterion of equidis-
tance for drawing the boundary line between that hypothetical State and
the continental shelf belonging to the Netherlands might be recognized as
equitable. The same thing would have to be said with regard to the
boundary line between Denmark and a hypothetical State comprising
the present Federal Republic and the present Netherlands.

Matters are otherwise if one considers (as must be done) the real
geographical situation and the results to which, in relation to that geo-
graphical situation, the application of the criterion of equidistance leads.
I am still referring to the results because it is those results that must be
appraised. It is not a matter of judging the equitable or inequitable
character either of a boundary line or of two boundary lines, whether
considered conjointly or separately. The result can only take concrete
shape, in the present case, as the combined effect of the criterion of
equidistance for determining both boundary lines together.

In my opinion, the gravely inequitable nature of the result to which
the application of the criterion of equidistance in the present case leads
must be recognized, this inequitable character consisting in the remark-
able disproportion between the area of the continental shelves pertaining
to each of the three States on the one hand and the length of their
respective coastlines on the other; and this is so even if for the coastline
of the Federal Republic there be substituted another shorter line, such
as the line Borkum-Sylt.

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16. Having indicated the solution that must be given, in my opinion,
to the problem of the substantive law, I shall now turn to certain pro-
blems of a procedural nature which arise in these cases and which
concern the powers of the Court.

There is first of all a problem which is connected with the substantive
point which I have just examined. It is the problem, as expressed in a
question put to the Parties in the course of the oral proceedings, of
whether “‘the two Special Agreements entitle the Court to enter into an
examination of the combined effect of the two boundary lines pro-
claimed by Denmark and the Netherlands”. To this question Denmark
and the Netherlands returned a negative answer.

Now it is quite true that the two disputes to which the two Special
Agreements refer are quite distinct. But they are two disputes which
have a certain connection with each other, because the claim advanced
by the Federal Republic as against Denmark, with a view to the delimi-
tation of the continental shelf as between the two States in a certain
way, is based upon the inequitable nature of the consequences to which
the criterion of equidistance would give rise if conjointly applied both
to the delimitation as between the Federal Republic and Denmark and
to the delimitation as between the Federal Republic and the Netherlands.
The claim advanced by the Federal Republic as against the Netherlands
presents similar features.

It is perfectly possible to envisage, as did Counsel for the two King-
doms, a situation in which the Court were seised of a request for the
resolution (in the real sense) of only one of the two disputes, for example,
that between the Federal Republic and Denmark. Now if in such a
situation the Federal Republic asked the Court to determine not only
its boundary with Denmark but also its boundary with the Netherlands,
there can be no doubt that it would not be open to the Court to give a
decision in the absence of the Netherlands, whose rights would be at
issue. In such event, it would not be inapposite to cite the Judgment of
the Court in the Monetary Gold case. If on the contrary the Federal
Republic confined itself, in the same situation, to a request in respect of
delimitation vis-à-vis Denmark only, I do not see that there would be
any obstacle to deciding the dispute, even in the event that, for the
purposes of its decision, the Court had also to take into consideration
the consequences of the criterion of equidistance on the delimitation
between the Federal Republic and the Netherlands.

But these are hypothetical situations which have nothing to do with
the present proceedings.

In the present proceedings the Court was confronted with two Special
Agreements, each of which requested the Court not to settle the dispute
to which it related but rather to determine the principles and the rules
of international law applicable to the delimitation of the continental
shelf as between the parties to each Special Agreement (respectively
the Federal Republic and Denmark and the Federal Republic and the

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Netherlands). It is altogether true that, despite the joinder of the two
cases, each Special Agreement had to be considered separately. But it
was quite possible for the Court, on the basis of one of the Special
Agreements and leaving the other out of account (and even if the other
had not existed at all), to find as to the principles and rules applicable
to the delimitation of the continental sheif as between the parties to
the Special Agreement under consideration; and that remains true even
if the Court had thereby been led to lay down a rule requiring account
to be taken of the combined effect of the equidistance line as between
the parties to the said Special Agreement, and of the equidistance line
between the Federal Republic and the State which was a party to the
other Special Agreement. The problem of whether such a rule exists or
not is one which concerns the substance, and I have already considered
it, answering it in the affirmative.

17. Having regard to the terms of the Special Agreements, which
speak of principles and rules applicable to “‘delimitation’’, etc., the pro-
blem arises of whether the Court had the power to lay down a rule
which, like the one which I indicated, really concerns not delimitation
qua statement of the existing situation but rather a modification of the
existing situation.

In reality, from the terminological point of view, a distinction must
be made between delimitation which consists in determining the existing
situation and has merely declaratory effects, and apportionment, which
has effects of a constitutive nature.

One may speak of apportionment, in the first place, in order to denote
the result of the automatic functioning of certain rules of law. The
placing on record of such a result constitutes the delimitation. This
shows that delimitation implies the application of the rules concerning
apportionment. It follows that the task with which the Court is entrusted
by the Special Agreements, the determination of the principles and rules
applicable to the delimitation, consists, in the first place and without
the slightest doubt, of the task of the determination of the rules and
principles by virtue of which the continental shelf is automatically appor-
tioned as between the various States.

The term apportionment is also used to denote the sharing-out of
something held in common. And one may also speak of apportionment
to indicate a modification of the apportionment as it eventuates at a
given time.

Consequently, if the term “delimitation” employed in the Special
Agreements is understood in its proper meaning, the Court’s task would
have to be considered as confined to determining the rules and principles
which effect, automatically, the apportionment of the continental shelf,
that apportionment being indeed presupposed by the delimitation. It
would not have been open to the Court to indicate either the rules, if
any, concerning the apportionment of the continental shelf considered
hypothetically as something held in common, or the rules which, like

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the one which I declared to exist, relate to a modification of the apportion-
ment in force. Nor would it have been open to the Court to indicate the
rule which it has determined, which also relates to apportionment.

The Special Agreements must nevertheless be interpreted with due
regard to the characteristics of the disputes to which they relate. Now the
two disputes are characterized by the Federal Republic’s claim to a
certain area of the continental shelf lying on the far side of the equidis-
tance lines. The Federal Republic has never asserted, in support of this
claim, that there is a right which it enjoys by virtue of the automatic
functioning of a legal rule. Rather than a delimitation on the basis of
an apportionment already effected, it is an apportionment which ought
to be effected to which the Federal Republic has always laid claim.
Since the disputes do not concern solely delimitation gua recording of
the existing situation, it is necessary to interpret the Special Agreements
accordingly, and to hold that, despite the term ‘delimitation’? which
they employ, the Special Agreements are intended to authorize the Court
to determine even the rules, if any, relating to apportionment, more
particularly the rule relating to possible modification of the existing
apportionment.

18. Given that the task entrusted to the Court by the Special Agree-
ments is to determine certain principles and certain rules of international
law, it might be thought that the Court ought to have confined itself
to stating the rule which, in my opinion, makes revision obligatory in
the event that certain circumstances occur, without finding as to whether
those circumstances actually exist. It would be for the Parties, in the
agreement provided for in paragraph 2 of Article 1 of the Special Agree-
ments, to ascertain whether circumstances rendering revision obligatory
actually exist and, if such circumstances are acknowledged to exist, to
draw the conclusions therefrom.

It must nevertheless be pointed out that the Special Agreements
request the Court to indicate the principles and the rules which are
“applicable to the delimitation as between the Parties of the areas of the
continental shelf in the North Sea which appertain to each of them”.
By referring to certain principles and certain rules as “applicable” to
the delimitation of the continental shelf as between the Parties, the
Special Agreements empower the Court, in my opinion, not only to state
the rules and principles, but also to determine what actually is the factual
situation and to declare, on the basis of what it finds, whether the rules
and principles it has determined ought to be applied. Had the Court
come to an affirmative conclusion on this factual point, it would still
have been for the Parties, in their agreement, to work out the consequences
of that finding.

As regards, in particular, the rule I have stated to exist, which renders
revision obligatory, it was for the Court to determine whether the
circumstances which that rule contemplates had actually occurred in the
present context, more particularly with regard to the gravely inequitable

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nature of the prevailing apportionment. In the event that the Court had
arrived at an affirmative conclusion on that point (as I think it ought to
have done), the Court would thereby have found that the rule ought
to be applied; a finding equivalent to declaring the Parties to be under
an obligation to negotiate an agreement for revision.

19. The rule which renders it obligatory under certain circumstances
to negotiate an agreement for the revision of the existing situation, as
it results from application of the equidistance criterion, is a legal rule
the content of which is to refer the matter to equity, from two different
aspects. In the first place, it is on the inequitable character of the prevailing
apportionment that the application of the rule depends. In the second
place, the rule does not directly indicate the criteria in accordance with
which the revision ought to be effected, because it refers the matter to
equity for that purpose also. Nevertheless, despite the fact that it refers
the matter to equity, the rule does not cease to be in itself a rule of law.
Hence the Court’s power to lay it down, in conformity with the terms
of the Special Agreements, which request the Court in terms to indicate
principles and rules of international law.

Furthermore, given that the Court’s task was not to settle disputes
but simply to state principles and rules of law, it would be beside the
point to enquire whether it was a judgment on the basis of law or a
judgment on the basis of equity that the Court was called upon to render.
It was, in reality, a judgment which could be given neither on the basis
of equity nor on the basis of the law, for the very simple reason that
the judgment was, not to apply the law, but, on the contrary, to declare it.

It is nevertheless necessary to pose a rather difficult question, the
answer to which depends on the nature of the renvoi to equity by the
legal rule. It is necessary to ask whether, after stating the rule which
renders negotiation of a revision obligatory in the event that certain
circumstances are present, and after finding that those circumstances
exist in the present cases, the Court ought also to have indicated the
criteria on the basis of which the revision should be carried out.

This question would have to be given an affirmative answer if the
criteria of equity could be deemed to be an integral part of the rule of
law, in view of the fact that it is to equity that the latter refers the matter.
If that is the point of view adopted, it must be held that the Court, in
indicating the criteria of equity would have done no more than specify
the concrete content of the rule of law it was called upon to determine.

But the premise for such an answer to the question would not be
correct. The fact that a rule of law makes a reference to extra-legal
criteria by no means signifies that those criteria are embodied in the rule
of law. They are criteria which the legal rule makes it obligatory to
apply, but which remain outside that legal rule.

It must be concluded that the Court, after stating the rule which
makes revision of the existing situation obligatory, ought to have refrained

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from indicating the criteria of equity in accordance with which such a
revision has to be effected. From that standpoint, the powers of the
Court in relation to equity were different from the powers which it
possessed to find the existence of circumstances rendering revision oblig-
atory. The reason is that, where the last point is concerned, the powers of
the Court went beyond a mere finding as to the rule of law; for the Court
was, in addition, called upon to determine the factual situation (including
the inequitable character of the prevailing apportionment) on which the
applicability of the rule to the concrete case depends.

20. In examining the problem of the substantive law, I arrived at a
twofold conclusion. I stated, in the first place, that the apportionment of
the continental shelf between different States takes place automatically
on the basis of the criterion of equidistance. I added, in the second place,
that the equidistance rule is accompanied by another rule which, where
the result of applying equidistance is in flagrant conflict with equity,
obliges the States concerned to negotiate an agreement between them-
selves to revise the existing situation. This rule is applicable to the instant
situation, because the circumstances which it contemplates are there pre-
sent.

The Court too lavs down in its Judgment a rule requiring an agree-
ment to be negotiated. That rule refers to equity so far as concerns the
criteria to which the agreement must conform, in the same way as the
rule I have stated to exist refers to equity not only because it is upon the
basis thereof that it must be seen whether the circumstances upon which
its application depends are present, but also, precisely as in the case of
the rule laid down by the Court, for the determination of the criteria to
which the agreement it requires to be negotiated must conform.

The fact that the rule laid down in the Judgment likewise refers to
equity for the determination of the criteria upon which the agreement
must be based ought to have led the Court to state the characteristics of
such a renvoi, in order to resolve the question of whether indicating
those equitable criteria fell within the task entrusted to the Court in the
Special Agreements, which was solely to determine rules of law. I think,
for the same reasons as I stated in the preceding paragraph, that the
answer that ought to have been given to this question, which the Court
has not raised at all, is in the negative.

Between the rule laid down by the Court and the rule I have stated to
exist, there are, however, profound differences, which should be stressed.
Those differences concern the relationship in which each of the two
rules stands towards other rules of law and, in consequence thereof, the
very content of the two rules, and, in particular, the role played by the
agreement which each of them contemplates.

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CONTINENTAL SHELF (DISS. OP. MORELLI) 215

The rule I have stated to exist is a subsidiary rule, in the sense that it
presupposes another rule, which may be termed the primary rule; that
rule is the rule of equidistance. Seeing that this latter rule is a rule which
functions automatically, the continental shelf is ipso jure apportioned in
a certain way. It is in relation to this situation, which is presupposed in
the subsidiary rule, that the latter operates, where appropriate, in the
sense of requiring the States concerned to negotiate an agreement to
revise it. Once concluded, that agreement merely modifies a situation
already regulated by the law in a certain way.

The rule laid down in the Court’s Judgment, on the other hand, is the
only rule concerning the apportionment of the continental shelf. It is a
single rule, even though the Judgment distinguishes in its reasoning a
first rule, which requires negotiations to be held, from what is termed
the rule of equity, and even though in the operative provisions of the
Judgment the Court, after having stated that delimitation is to be effected
by agreement, refers to equitable principles, going on to indicate certain
criteria which the agreement between the States concerned must or may
apply. It is quite clear, in fact, that the reference to equity and the indica-
tion of certain criteria are merely a means of defining the contents of the
rule requiring negotiation: they are by no means a formulation of in-
dependent rules or principles additional to the rule requiring negotiation.

Now the rule laid down by the Court (the only rule on this subject) is
not a material rule which directly governs the apportionment of the
continental shelf. It is, on the contrary, an instrumental rule, i.e., a rule
which contemplates a certain way of creating the material rule. That way
consists in agreement between the States concerned. For so long as no
agreement has been concluded, there is no material rule and there is no
apportionment at all. Hence arises that situation of a legal void to which
I have already had occasion to refer: a situation which I consider almost
inconceivable and in any event regrettable.

It may be questioned in this connection how the Court’s view that
delimitation (or, more correctly, apportionment) can only take place
by means of agreement is reconcilable with what is stated in paragraphs
19 and 20 of the Judgment. In those paragraphs the Court rejects the
doctrine of the just and equitable share for the reason (paragraph 19)
that the rights of a State over the continental shelf, at least as regards the
area that constitutes a natural prolongation of its Jand territory under
the sea, are inherent rights existing ipso facto and ab initio, for the reason,
in other words (paragraph 20), that “the notion of apportioning an as
yet undelimited area considered as a whole (which underlies the doctrine
of the just and equitable share), is quite foreign to, and inconsistent with,
the basic concept of continental shelf entitlement, according to which the
process of delimitation is essentially one of drawing a boundary line
between areas which already appertain to one or other of the States
affected”. Despite the difficulty of grasping the exact sense in which the
terms “delimitation” and “apportionment” are used in the Judgment, it

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seems that in the paragraphs I have just mentioned the Court recognizes
that, independently of any agreement, there are “areas which already
appertain to one or other of the States affected”, in other words, that
there is an already existing apportionment (properly so called) of the
continental shelf among the States affected, to each of which a certain
area is automatically assigned.

21. The obligation which arises from the rule stated in the Judgment to
constitute what is called the ‘‘first rule’, i.e., the obligation to negotiate
the delimitation of the continental shelf, is regarded by the Court as
being identical with the obligation assumed by the Parties under Article 1,
paragraph 2, of the Special Agreements (paragraph 86 of the Judgment).
With regard to this assimilation, I would refer to what [ shall have to
say hereafter. So far as concerns the obligation imposed by the rule laid
down in the Judgment, it seems that that obligation is conceived of by
the Court as independent of the existence of any dispute; this emerges too
from the reference made in the Judgment, in this connection, to the
Truman Proclamation. This significance of the principle stated by the
Court is a wholly natural one, because the requirement of a delimitation
or, more precisely, of an apportionment, the need, in other words, to
fill the legal void of which T have just spoken, is a requirement which
occurs even apart from the existence of a dispute between the States
concerned.

Now the obligation to negotiate an agreement for the apportionment of
the continental shelf, according to the Court, is only a special application
of a principle which is said to underlie all international relations. There is,
it seems, a general obligation to negotiate which itself too is independent
of the existence of a dispute.

In my opinion, it is not at all possible to recognize the existence of
any general obligation to negotiate. A State which is asked by another
State to enter into negotiations with a view to the conclusion of an
agreement for the settlement of certain relations may, without doing
anything contrary to law, refuse to do so, unless there be a specific rule
requiring negotiation.

As for Article 33 of the Charter, which is mentioned in the Judgment,
that Article refers only to the case of a dispute, and more precisely,
to a dispute “the continuance of which is likely to endanger the mainte-
nance of international peace and security”. And, even within those limits,
Article 33 by no means creates an absolute obligation to seek, by means
of negotiation, a solution to the dispute. The obligation imposed by
Article 33 is to seek the solution to a dispute by pacific means; negotia-
tions are but one of the pacific means which the aforesaid Charter
provision mentions as capable of being utilized. It is, in other words,
an alternative obligation; so that Article 33 would by no means be
violated in the perfectly conceivable hypothesis of a State’s refusing to
negotiate, while seeking a solution to the dispute by other pacific means.

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22. It must further be made clear that the negotiations which the
Parties are required to hold on the basis of the rule laid down by the
Court, as well as on the basis of the rule which I have stated as a sub-
sidiary rule applicable to the instant situation, have nothing to do, as
such, either with the negotiations that were unsuccessfully carried on
in 1965 and 1966 or with the negotiations envisaged in Article 1, para-
graph 2, of the Special Agreements. The 1965 and 1966 negotiations
were aimed at settling by agreement the disputes which had arisen
between the Parties. The negotiations envisaged in the Special Agree-
ments will have the same aim, that is to say, the conclusion of agreements
for the solution of the same disputes, it being understood that such
agreements will necessarily have to be based upon the principles and
rules laid down by the Court. On the other hand, the obligation to
negotiate arising out of the rule stated by the Court is independent of
any dispute; it is aimed not at the resolution of a dispute, which, in
some case other than that with which the present cases are concerned,
might even be non-existent, but rather at the creation ex novo of a special
rule concerning the apportionment of the continental shelf.

It is quite true, however, that the discharge by the Parties to the present
cases of this latter obligation implies at the same time the discharge of
the obligation which they assumed under Article 1, paragraph 2, of the
Special Agreements. But this is a mere coincidence, resulting from the
fact that the rule determined by the Court (a rule with which the agree-
ments envisaged in the Special Agreements must conform) is not a
material rule but an instrumental rule requiring the negotiation of agree-
ments. In the event of the Court’s having stated solely a material rule,
there would still be an obligation to negotiate, but it would only be the
obligation arising out of Article 1, paragraph 2, of the Special Agree-
ments.

(Signed) Gaetano MORELLI.

218