SEPARATE OPINION OF JUDGE PADILLA NERVO

I am in agreement with the Judgment of the Court, and particularly
with its findings: that the use of the equidistance method of delimitation
is not obligatory as between the Parties; that delimitation is to be
effected by agreement in accordance with equitable principles in such
a way as to leave to each Party all those parts of the continental shelf
that constitute a natural prolongation of its land territory under the sea,
without encroachment on the natural prolongation of the land territory
of the other. I also concur in the statement of the Court regarding the
factors that the Parties are to take into account in the course of the
negotiations.

*
* *

I wish to make the following observations which emphasize my indivi-
dual point of view regarding the main issues before the Court, my
analysis of the conflicting contentions of the Parties in the present case
and the reasoning which leads me to agree with the Court.

When reference is made in the Special Agreements to “principles and
rules of international law”, it should be borne in mind that there are
certain rules of a practical nature, so called “principles”, which are in
reality only methods or systems used to apply the principles. This is
so in respect of the “equidistance rule” which is referred to as a “prin-
ciple” in the Continental Shelf Convention.

In the present case, Denmark and the Netherlands rely on the applica-
tion of the 1958 Geneva Convention on the Continental Shelf, which
they have signed and ratified.

The Federal Republic of Germany contends that the Convention is
not applicable, since it has not ratified it.

There is no doubt that the Federal Republic is not contractually bound
by the Convention. There is no controversy about this point. Therefore
on these bases the 1958 Convention is not opposable as such to the Federal
Republic.

Denmark and the Netherlands contend that the Federal Republic
has manifested its agreement to the Convention in respect of a number
of its provisions, in particular that it has concluded with them two
treaties for the purpose of drawing, according to what are in reality
equidistance lines, those parts of the boundary lines between the German
and Danish, and the German and Netherlands continental shelves which
are near the coast.

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86 CONTINENTAL SHELF (SEP. OP. PADILLA NERVO)

In my opinion it does not follow from this fact that the Federal Re-
public is bound to accept equidistance lines “tas regards the further
course of the dividing line”. It appears from the negotiations which
took place for the purpose of concluding the above-mentioned two
treaties that the Federal Republic did not rely on Article 6 of the Con-
vention for drawing the boundary near the coast. Those lines were
drawn by agreement among the Parties and their direction, extent and
result were considered by them as being fair, just and equitable. If those
lines were in reality equidistance lines to a certain extent (they suffered
in fact some deviations) that circumstance does not change the fact
that the boundary lines were determined by agreement between the
Parties concerned. That emphasizes the assertion that only by agreement
can, in the last resort, these problems be settled.

The fundamental issue between the Parties in the cases before the Court
is the question whether or not the equidistance line should constitute the
boundary line between their respective continental shelves beyond the
partial boundaries they have already agreed upon.

On this question there has been disagreement between the Parties
from the beginning of their negotiations. Denmark and the Netherlands
insisted that the equidistance line alone could be the basis on which
the boundary line might be fixed by agreement. The Federal Republic
took the position that the geographical situation in that part of the
North Sea required another boundary line which would be more fair
to both sides.

If Article 6 of the Convention is not contractually binding on the
Federal Republic, the Court must consider whether or not the rule it
embodies or reflects is opposable to it on some other basis, and whether
that part of Article 6 which relates to the equidistance principle constitutes
a recognized rule of general international law which would as such be
binding on the Federal Republic.

So far as State practice prior to the 1958 Convention is concerned,
and as far as it has been possible for this to be ascertained, it does not
appear that the cases of use of the equidistance line for the lateral
delimitation of the continental shelves of adjacent States are numerous,
nor does that practice show a uniform, strict and total application of
the equidistance line in such cases so as to be qualified as customary.
In my opinion, Article 6 does not embody a pre-existing accepted rule
of customary international law, or one which has come to be regarded
as such.

The equidistance rule is rather a conventional rule or technical method
which could be altered by the parties to the Convention. According to
the Convention the parties, by agreement, are able to disregard the
principle of equidistance. If the equidistance rule was a pre-existing rule
of general international law, Article 6 would not give primacy to settle-
ment by agreement, nor could an agreement between the parties overlook,
disregard or evade the application of a binding rule.

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87 CONTINENTAL SHELF (SEP. OP. PADILLA NERVO)

During the preparatory work of the International Law Commission
there were many difficulties in respect of the text of Article 6 of the Con-
tinental Shelf Convention, as the Commission was doubtful regarding
the criterion of equidistance and the unpredictable results of its applica-
tion.

Although the International Law Commission reported on the whole
law of the sea together, the 1958 Conference adopted separate conven-
tions on the territorial sea, the high seas, and the continental shelf, and
also a fourth convention on fishing.

Consideration of the fact that it was widely held that the continental
shelf was a new concept and that international law on the subject was
in process of development led to the decision to incorporate the articles
relative to the continental shelf into a separate convention, allowing
reservations to all of them except Articles | to 3 (formerly Articles 67,
68 and 69), as stated in Article 12.

Article 6 of the 1958 Convention did not at that time “embody already
received rules of customary law and was not then declaratory of existing
rules”, and it has not since then, in my view, by the practice of States
and accumulation of precedents, acquired the character of binding
customary law.

The consideration that the law on the subject in 1958 was in process
of development was emphasized by the provision in Article 13, allowing
the revision of the Convention at the request of any contracting party,
at any time after five years from the date the Convention entered into
force. As a result of that Article, it will be feasible to modify the Con-
vention after June 1969.

In practice, the application of the equidistance method for lateral
delimitations, prior to 1958, has not been rigid in all cases. Certain
factors or special circumstances have been taken into account as justify-
ing a deviation from its rigid application, and the equidistance line has
been replaced by other lines fixed by agreement. Its use can not be qualified
as customary.

At Geneva, the equidistance principle was regarded as the most equitable
method for fixing boundaries, though not the only one, but the purpose
and the aim was to find or develop a rule which ought to be equitable.
Justice and equity was an overwhelming consideration in the minds of
the framers of the Continental Shelf Convention in their search for a
rule which would not result in harsh inequities, so far as they could
predict the actual results of its application.

Adjacent States parties to the Convention are not obliged, by Article 6,
to determine the boundary of the continental shelf adjacent to their
territories by the rigid application of the principle of equidistance: they
are free to determine the boundary otherwise if they so desire, by agree-
ment between them.

The criterion of equidistance is a technical norm which should aim at

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88 CONTINENTAL SHELF (SEP. OP. PADILLA NERVO)

realizing what is just according to the natural law of nations. (Article 38
(1) fc) of the Court’s Statute.)

The Convention includes some technical rules which cannot yet be
regarded as principles of international law.

The obligation to negotiate is a principle of international law. Preference
should be given to agreement. The first sentence in Article 6 is categorical,
it is a statement of principle—‘‘the boundaries ... shall be determined
by agreement”.

“The absence of agreement” cannot be considered as a weapon in the
hands of any State to impose upon another adjacent State the application
of the equidistance rule, but regard should be given to the special circum-
stances of the case, which may be the reason for the disagreement to
the application of the equidistance rule. If the adjacent State disagrees
as to the existence of special circumstances, the other State may not
determine the boundary of its continental shelf by a unilateral act.

The existing agreements between States in the North Sea are not
sufficient proof of the recognition by the States concerned of the equidis-
tance principle in Article 6 as ‘generally accepted law” binding upon them.
It could rather appear that since the delimitations by the equidistance
method were made by agreement between the States concerned, there
was some recognition of the fact that the resu/t of the application of
such method was satisfactory to those States and was considered by
them to be just and equitable. If it had been considered to be unfair by
one of the parties, no agreement could have been reached.

Geographical realities may justify a deviation from a rigid application
of the equidistance principle.

Until settled by agreement or by arbitration, the question is open.
In the cases before the Court, if there is no agreement, the boundary
lines unilaterally fixed do not exist so as to be opposable to the Federal
Republic.

The effect of the right conferred by Article 12 of the Continental Shelf
Convention to make reservations to (inter alia) Article 6, as regards
the contention that the Convention either crystallized the equidistance
method as a general rule of law or is to be regarded as having founded
such a rule, can be more clearly ascertained in the light of the discussion
on the subject at the plenary meetings of the 1958 Conference on the
Law of the Sea.

It was considered that since the continental shelf was a new subject
of international law it was desirable that a large number of States should
become parties to the Convention, even if they made reservations to
articles other than Articles 67 to 69 (1 to 3), and many representatives
were of the opinion that there should be a clear provision in the Conven-
tion regarding reservations, since great difficulties had arisen from the
lack of such a provision in previous conventions.

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89 CONTINENTAL SHELF (SEP. OP. PADILLA NERVO)

It was stated that in discussing the question of reservations to the
proposed articles, it should be remembered that the Conference had
been convened to draw up international standards which would be
progressively accepted until they became common to all States.

The Convention should be worded so that all States could become
parties to it. The question of reservations was of fundamental importance.
The Convention would be valueless if ratified by only a few States.
Frequently, governments wanted to make to a convention reservations
which did not affect common standards, and were unwilling to become
parties to it unless they could do so.

Representatives wishing to permit reservations had been reproached
for defending national interests; but, in fact, they were attending the
Conference for that very purpose.

The debate showed that if an absolute prohibition of the making of
reservations were pressed there could be no agreement.

International law, it was said, must be built up gradually, but that
rule did not preclude attempts to base international instruments on
justice and equality among States.

In conclusion it seems correct to affirm that the right to make reserva-
tions to Article 6 shows that the States at Geneva did not intend to accept
the equidistance method as a general rule of law from which they could not
depart and which would be binding on them in all cases. Therefore the con-
tention that the Convention crystallized the equidistance method as a
general rule of law, or is to be regarded as having founded such rule,
is not justified, and it appears from the records that the debates at the
Geneva Conference do not afford a basis for or give support to such a
contention.

Although the cases of Denmark and the Netherlands have been joined
for purposes of presentation to the Court, because both Parties are
putting forward the same basic contentions, they remain separate cases
in the sense that one relates to the Danish-German line of demarcation,
and the other to the German-Netherlands line; but if these lines were
taken separately and in isolation there would be no problem: it is the
simultaneous existence of both lines, if constructed throughout on equidis-
tance principles, that leads to an inequitable result, and causes the
Federal Republic’s objection. It is the existence of the three coasts with
Germany in the middle (and its coastal configuration) which creates the
problem.

Two lines are here involved which, by their interaction have in fact
automatically determined the Federal Republic’s area of the continental
shelf. The Court cannot ignore this fact but has to take full account of it.

Geographically, the North Sea constitutes what for purely practical
purposes may be called an “internal” sea, in the sense that while it has

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90 CONTINENTAL SHELF (SEP. OP. PADILLA NERVO)

some outlets to the ocean it is bordered along almost the whole of its
periphery by the territories of a number of coastal States.

There is a general consensus on the part of all the coastal! States to the
effect that the bed of the North Sea constitutes in its totality a single
continental shelf, the various parts of which each appertain to one State.

Several of the coastal States on the North Sea are opposite each other
and others, lying on the same side of the sea, are adjacent and have
lateral boundaries.

Consequently, the continental shelves appertaining to the coastal States
whose coasts almost totally enclose the North Sea are converging con-
tinental shelves, with an initial base or boundary constituted by the
coast of the territory of each State, and an end-point or boundary which
touches the continental shelf of the opposite States on the other side of
the sea.

In the case of the States parties to the present dispute, the Netherlands,
the Federal Republic and Denmark are States the coasts of which are
opposite to the coast of the United Kingdom. If in principle the rule
contained in Article 6, paragraph 1, of the Continental Shelf Convention
is applied, the boundary between the continental shelves of the Federal
Republic of Germany and the United Kingdom would be constituted by
the median line in the North Sea drawn between the coasts of the two
States. But the possibility of drawing such a median boundary line is
excluded on account of the fact that, under the treaty of 31 March 1966
between the Governments of the Netherlands and Denmark, two areas
of the continental shelves which those States have bilaterally accorded
each other are interposed in the central area of the North Sea, between
the Federal Republic and the United Kingdom. In fact, such overlaps
appear to prevent the implementation of the relevant treaty rules and
it appears that this particular case, that of an internal sea, was not
contemplated when the text of Article 6 was drafted. Neither paragraph |
nor paragraph 2 of Article 6 have made provision for the overlaps which
may arise from the simultaneous existence of median and lateral equidis-
tance lines where there are both opposite and adjacent States in a partic-
ular internal sea. It appears therefore that the case of the North Sea, so
far as the situation of the Parties to the present dispute is concerned,
could be deemed a case in which special circumstances exist.

The delimitation should be reasonable. It is the repercussion or com-
bination of both lines which caused the German objection and which
does in fact lead to an unreasonable result. Their combined effect is not
equitable in respect to the Federal Republic. That was the cause of the
disagreement and the very reason why the Parties have brought their
dispute to this Court.

I believe that the Parties, by submitting the matter to the Court in
the way selected by them, recognized in effect that the respective lines
cannot be determined in isolation from one another, and that the matter
constitutes an integral whole.

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9] CONTINENTAL SHELF (SEP. OP. PADILLA NERVO)

On 30 October, during the oral proceedings. Counsel for the two
Kingdoms said that in a sense the Netherlands and Denmark are slant-
ingly opposite to each other but that by no stretch of imagination could
they be called adjacent States.

If Article 6, paragraph 2, prescribes the equidistance method only in
the case of two adjacent States, the fact that the two Kingdoms, not
being adjacent States, have determined their boundaries between them
on the basis of equidistance shows, it appears, that if their agreement 1s
based on the Geneva Convention it had to be concluded under the first
sentence of the first paragraph of Article 6. that is, merely as a bilateral
ad hoc agreement and not on the basis of some principle.

There is no rule of international law which allows a State to delimit
its continental shelf with every other State unilaterally by the application
of the equidistance method, unless the other State acquiesces in such a
boundary. The equidistance boundary may not be imposed upon a State
which has not acceded to the Convention.

In the present case, the point in issue is whether that part of Article 6
of the 1958 Convention on the Continental Shelf which relates to the
equidistance method does or does not embody a rule of general inter-
national law binding on the Federal Republic.

It is generally admitted that in State practice prior to the Geneva
Conference of 1958 the tendency was to refer in general terms to the
delimitation of continental shelf boundaries on “eguitab/e principles”,
without mention of the ‘“‘equidistance” principle in particular. State
practice up to that date was not regarded by the International Law
Commission as sufficiently consistent to establish any customary rule
as already in existence with respect to the continental shelf.

I have said above what in my opinion is the character of the State
practice after 1958, which does nof show that the ‘‘equidistance” rule
has yet evolved as customary law.

In the preparatory work of the International Law Commission, as at
the Geneva Conference, the sentiment that the equidistance principle
should not be an absolute rule was always predominant. When it was
suggested that the ‘special circumstances” rule should be eliminated
from the text of Article 6, the proposal to that effect was overwhelmingly
rejected.

The equidistance method was to be applied, so to speak, in the last
resort, only when agreement was not forthcoming and when the demarca-
tion in any concrete case did not have characteristics which would justify
the drawing of lines of delimitation by any other method.

The flexibility and adaptability of the text of Article 6 to a variety of
situations, potential conflicting claims, geographical and geological dif-
ferences regarding coastal States all over the world, were considerations
and preoccupations always present during the framing of Article 6, in
order to make possible a large measure of acceptance by governments.

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92 CONTINENTAL SHELF (SEP. OP. PADILLA NERVO)

The right to make reservations to Article 6 was another safety valve
against a rigid application or interpretation of the equidistance concept
in a manner which would alter its real nature as a technical norm to be
used constructively in instances where there was no agreement or special
circumstances did not exist.

When, during the negotiations, one of the parties alleges the existence
of special circumstances, there is only one way out of the impasse:
compromise and further negotiations. There is no possibility of arriving
at an acceptable, fair and peaceful solution, and one which will therefore
endure, if it is not searched for by the ways and means stated in Article 33
of the Charter of the United Nations Organization.

The obligation to negotiate is an obligation of tracto continuo, it never
ends and is potentially present in all relations and dealings between
States.

The purpose of the continental shelf doctrine and of the Convention
is to contribute to a world order, in the foreseeable rush for oil and
mineral resources, to avoid dangerous confrontation among States and
to protect smaller nations from the pressure of force, economic or
political, from greater or stronger States.

The pacific settlement of disputes in this field should promote friendly
relations and enduring co-operation especially among neighbouring
States. Solutions likely to be considered by one of the parties as inequit-
able would be difficult to enforce, they would in time be evaded and
would breed new disputes.

The question arises: do geographical realities justify a deviation from
the rigid application of the equidistance rule? I believe they do justify
such deviation.

The distorting effect caused by the application of the lateral equidis-
tance line, when it cannot be accounted for by the length of the coastline,
justifies the application of the special circumstances principle.

If the application of the equidistance rule would result in harsh in-
equities in a given specific case, this result may be considered as a special
circumstance justifying another boundary line, in the absence of agree-
ment between the parties concerned.

[ think it is correct to say that the discussion on the reservation of
‘special circumstances”’ showed that this clause was understood not so
much as a limited exception to a generally applicable rule, but more in
the sense of an alternative of equal rank to the equidistance method.

The configuration of the North Sea coasts of Denmark, of the Federal
Republic and of the Netherlands and the effects produced by such geo-
graphical configuration on the boundaries of the continental shelves of
these three States, as they result from the application of equidistance,
constitute a circumstance entitling the Federal Republic to claim from
Denmark and the Netherlands a revision in its favour of the boundaries
of its continental shelf.

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93 CONTINENTAL SHELF (SEP. OP, PADILLA NERVO)

! agree with the contention that ‘the history and documents of the
Geneva Conference on ... the Continental Shelf show that the origin
of the ‘special circumstances” clause was the fact that coastal features
or irregularities fairly frequently exercise a harmful influence on the
equidistance line, resulting in considerable inflexions or deviations, the
effect of which is inequitably to reduce the ... shelf area that would
normally go to a party. It was consequently in order to provide a
safeguard for the rights of the losing party, in a spirit of equity that
the ‘special circumstances’ provision was introduced, allowing ‘another
boundary line’ to be drawn instead of the equidistance line or in combi-
nation with it.”

This is also confirmed by the commentary which the International
Law Commission added to Article 72 of its draft (subsequently Article 6
of the Continental Shelf Convention):

“|... provision must be made for departures [i.e., from the equidis-
tance line} necessitated by any exceptional configuration of the coast,
as well as by the presence of islands or of navigable channels. This
case may arise fairly often, so that the rule adopted is fairly elastic.”
(Yearbook of the International Law Commission, 1956, IN, p. 300.)

Attempts made at the Geneva Conference on the Law of the Sea to
strike out the alternative of “special circumstances” and to make the
equidistance method the only rule were rejected by a large majority.

In addition to special situations of a technical nature—navigable
channels, cables, safety or defence requirements, protection of fisheries
(fish banks), indivisible deposits of mineral oil or natural gas, etc.—
special geographical situations such as special coastal configurations
have been regarded as special circumstances.

M. W. Mouton, “The Continental Shelf”, Recueil des Cours, Volume
85 (1954, I), page 420:

“Tt is stipulated that this rule is applicable in the absence of
agreement between the States concerned and unless another bound-
ary line is justified by special circumstances. The modifications to
the general rule are allowed either because the exceptional con-
figuration of the coasts, the presence of islands or navigable channels
necessitate departure from these rules, or because of the existence
of common deposits situated across the mathematical boundary.”

Colombos, The International Law of the Sea, 1959, page 70:

“The rule, however, admits of some elasticity in the case of

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94 CONTINENTAL SHELF (SEP. OP. PADILLA NERVO)

islands or navigable channels as well as in the case of an exceptional
configuration of the coast.”

Olivier de Ferron, Le droit de la mer, Vol. IT, page 202:

“Article 6 of the Geneva Convention in fact provides that these
(sc., the median line and the lateral equidistance line) may be
modifed by agreement between the States concerned, when ‘another
boundary line is justified by special circumstances’, for example
when the exceptional configuration of the coast or the presence of
islands or of navigable channels necessitates this. The rules adopted
by the Geneva Conference are thus sufficiently flexible to permit of
an equitable solution in all cases.” [Translation by the Registry.]

Consequently, the Parties should search for another method of delimi-
tation which would produce a just and equitable result and, following
the guidance given by the Court, should start new negotiations in com-
pliance with their obligation laid on them by a principle of general
international law. The Parties will then, as stated in Article 1, paragraph
2, of the Special Agreement, fix the boundaries by agreement among
them.

I might say in conclusion that my opinion is that in this specific case
the equidistance rule is not applicable, that there is no general customary
law binding the Federal Republic to abide by the delimitation of its
continental shelf as results from the lines drawn as a consequence of
the ad hoc agreement made between its neighbours Denmark and the
Netherlands; that the Parties should search for and employ another method,
in conformity with equity and justice, and that the Parties should undertake
new negotiations to delimit the continental shelf in the North Sea as
between their countries by agreement, in pursuance of the decision given
by the Court.

The arguments in favour of the applicability of the equidistance method
in Article 6 of the Convention are as follows:

(a) that the Federal Republic of Germany took part in the deliberation
of the Geneva Conference and signed the Convention without reser-
vations to Article 6;

(b) that the Federal Republic informed the two Governments that its
Government was preparing to ratify the Convention;

(c) that the Federal Republic in its Proclamation of 20 January 1964
invoked the Convention to assert sovereign rights to its continental
shelf regarding the exploration and exploitation of its natural re-
sources ;

(d) that the principle of estoppel applies and the Federal Republic
should not be allowed to deny the valid legal force of the Conven-
tion.

The equidistance method cannot be considered as a rule derived from
fundamental principles of general acceptance.

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95 CONTINENTAL SHELF (SEP. OP. PADILLA NERVO)

The new concept of the continental shelf expressed in the Truman
Proclamation and in subsequent governmental proclamations; the exis-
tence of opinions that jurisdiction of the coastal State over the adjacent
continental shelf was already part of customary international law; and
finally the definition of the continental shelf as contained in Articles |
to 3 of the Convention, are all points which count against the assertion
that the equidistance method in Article 6 is a rule of customary inter-
national law.

The acceptance, recognition or invocation of the rights defined in
the first three articles of the Convention (to which reservations are
prohibited) by a State not party to the Convention, does not signify or
imply an obligation to abide by the method of equidistance. It is not
logical or right to affirm that if a party to the Convention may make
reservations to Article 6, a State which is not bound by the Convention
in a contractual manner could be in a worse situation than a party in
respect to the rigid application of Article 6,

(a) The argument that the Federal Republic took part in the delibera-
tions at the Geneva Conference is not a valid one, nor is it prima facie
an indication of consent or acceptance to be bound by the conventions
concluded at such Conference. [f mere attendance at an international
conference could produce binding effects, no State would be willing to
take part in any conference, the concrete results and implications of
which are unknown.

It is not denied that the Federal Republic did sign the Convention
on the Continental Shelf and did not make reservations to Article 6;
but this signature is a preliminary step made ad referendum, subject to
the express approval of the appropriate organ of a State by its own
constitutional procedures. The Federal Republic did not ratify the Con-
vention, is not a party to it and therefore cannot be contractually bound
by its provisions.

(b) The fact that the Federal Republic informed the two Kingdoms
that it was preparing to ratify the Convention cannot be considered as
a legal and binding promise to do so.

Such information may be a manifestation of intention to perform in
the future a certain act; the intention existing at a given moment might
be changed later on and the party is free to change its mind.

As long as the act (in this case, ratification) is not actually performed,
there cannot be a binding obligation; the consent cannot be implied or
deduced from such information of intention.

(c) The fact that the Federal Republic in its Proclamation of 20
January 1964 invoked the Convention to assert sovereign rights to its
continental shelf cannot be taken as an expression of consent to be bound
by the Convention as a whole, nor does it mean that the Federal Republic
accepted the method of equidistance. The Federal Republic by such

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96 CONTINENTAL SHELF (SEP. OP. PADILLA NERVO)

Proclamation claimed a right to its continental shelf as being a prolonga-
tion into the sea of its land territory, but it could have made that claim
regardless of the Convention in the manner of the Truman Proclamation.
Invoking the definition of the first three articles of the Convention, the
Federal Republic of Germany asserted a right already in existence,
recognized internationally before the framing of the Continental Shelf
Convention and inherent in the accepted doctrine of the continental
shelf.

Claiming such a right and quoting its definition in the Convention
does not imply an acceptance of the whole Convention as such, nor an
acceptance of the rigid application of the principle of equidistance.

(d) The principle of estoppel cannot in this case be applied against
the Federal Republic. It cannot be proved that the two Kingdoms
changed their position for the worse relying on such acts of the Federal
Republic as its 1964 Proclamation or its manifestation of its intention
to ratify the Convention.

The first three articles of the Convention were intended to be broadly
declaratory of existing customary international law, but it is essential not
to extend the character of these articles to the rest of the articles in the
same Convention, which are not at all declaratory of contemporary
customary law, and which in general are of a pure technical character,
which could be the subject of express reservations as is, especially, the
method of equidistance. Whatever publicists have said regarding the
doctrine of the continental shelf and its definition in the first three
articles of the Convention, does not apply to the whole Convention,
and by no legal reasoning could it be said that the method of equidis-
tance in Article 6 embodies a rule of customary international law.

The number of ratifications and the instances where States by agree-
ment have made use of the equidistance method do not give to that
method the character of customary law. There is agreement between
the Parties to the effect that the Convention is not applicable to the
Federal Republic as a contracting party; nor is Article 6 applicable to
it as a principle of general international law. Even the States parties to
the Convention are not bound to apply the equidistance method since—
by the very terms of Article 6—they are free to agree to another method
or manner of delimitation of their continental shelves.

A treaty does not create rights or obligations for a third State without

its consent, but the rules set forth in a treaty may become binding upon
a non-contracting State as customary rules of international law.

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97 CONTINENTAL SHELF (SEP. OP. PADILLA NERVO)

Article 6 of the Convention and particularly the method of equidis-
tance does not constitute a rule which has been generally accepted as a
legally binding international norm.

The acts of the Federal Republic which are invoked as evidence that
it has gone quite a long way towards recognizing the Convention, cannot
override the fact that it has consistently refused to recognize Article 6
and the equidistance method as an expression of a generally accepted
rule of international law and has objected to its applicability as against
itself.

The Federal Republic, like any other State, could assert its rights over
the continental shelf without relying on the Convention. States have made
such assertions long before the Geneva Conference took place (Truman
Proclamation; Mexican Declaration of 29 October 19451) and may do
so now and in the future regardless of the Convention. The right of a
coastal State to its continental shelf exists independently of the express
recognition thereof in the first three articles of the Convention, and is
based on the consideration that the continental shelf is the natural
prolongation under the sea of the land territory pertaining to the coastal
State.

A treaty may contain a clause allowing or prohibiting reservations
to some of its provisions. A party making permitted reservations to a
particular article is not bound by its text. The very purpose of a reserva-
tion is to allow parties to escape from the rigid application of a particular
provision. No right is conferred to make unilateral reservations to
articles which are declaratory of established principles of international
law. Customary rules belonging to the category of jus cogens cannot be
subjected to unilateral reservations. It follows that if the Convention by
express provision permits reservations to certain articles this is due to

! Presidential Declaration with respect to continental shelf, 29 October 1945:
“(The continental shelf] clearly forms an integral part of the continental countries
and it is not wise, prudent or possible for Mexico to renounce jurisdiction and
control over and utilization of that part of the shelf which adjoins its territory in
both oceans.

For these reasons the Government of the Republic lays claim to the whole of the
continental platform or shelf adjoining its coast line and to each and all of the
natural resources existing there, whether known or unknown, and is taking steps to
supervise, utilize and control the closed fishing zones necessary for the conservation
of this source of well-being.

The foregoing does not mean that the Mexican Government seeks to disregard
the lawful rights of third parties, based on reciprocity, or that the rights of free
navigation on the high seas are affected, as the sole purpose is to conserve these
resources for the well-being of the nation, the continent and the world.” { Translation
by the U.N. Secretariat.

See also Articles 27, 42 and 48 of the Mexican Constitution, as amended by
Decree of 20 January 1960 (Diario Oficial, Vol. CCXXX VII, No. 16) “The national
territory comprises ... (inter alia! the continental shelf and the submarine shelf of
the islands, keys and reefs” (Art. 42). {Translation by the U.N. Secretariat.]

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98 CONTINENTAL SHELF (SEP. OP. PADILLA NERVO)

recognition of the fact that such articles are not the codification or
expression of existing mandatory principles or established binding rules
of general international law, which as such are opposable not only to
the contracting parties but also to third States.

Article 6, among others, of the Continental Shelf Convention is of
a technical nature; it is not the expression of a customary norm and is
not opposable to the Federal Republic which has consistently refused
to accept the application, without its consent, of the equidistance method.

The history of the Convention through the International Law Com-
mission, the General Assembly and the Geneva Conference shows that
the equidistance concept is not and was never intended to be the expres-
sion of an international legal rule of universal applicability. The fact
that the Convention has not made compulsory the rigid application of
the equidistance method does not mean that the Convention is in-
complete or that it left the question of delimitation open. This question
certainly arises but delimitation cannot be enforced by peaceful means
except by agreement, arbitration or judicial decision.

The only principle of general international law implicit in Article 6
is the obligation to negotiate, since the delimitation between the continental
shelves of adjacent States “shall be determined by agreement between
them”.

The fact that the equidistance method has been followed in several
bilateral agreements between neighbouring States does not mean at all
that those States were compelled by the Convention to use the
equidistance method. It only means that there was agreement between
them because they considered such method satisfactory, fair, equitable
and convenient. They also departed from the equidistance method when
they agreed to do that.

The bilateral agreement of 31 March 1966, made before the last part
of the tripartite talks in Bonn in May, was founded on the assumption
that the failure of the talks up to that time was conclusive and that in
the absence of agreement they could proceed on the application of the
equidistance method. The Federal Republic not being a party to such
agreement refused to abide by it and consider it as res inter alios acta.

The lack of agreement in the negotiation was, nevertheless, not con-
clusive in the opinion of the Parties, as was shown bv the fact that they
decided to present the matter to the Court.

In my opinion, paragraphs 71 to 75 of the Court's considerations
contain—in their application to the present case—1he statement of the

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requirements which must be satisfied in order that a rule which in its
origin is only a contractual one may become a rule of customary inter-
national law.

These requirements. which may be regarded as of general application,
could be summed up as follows:

“It would in the first place be necessary that the provision con-
cerned should, at all events potentially, be of a fundamentally norm-
creating character such as could be regarded as forming the basis
of a general rule of law.” (Paragraph 72, first sentence.)

“With respect to the other elements usually regarded as necessary
before a conventional rule can be considered to have become a
general rule of international law, it might be that, even without the
passage of any considerable period of time, a very widespread and
representative participation in the convention might suffice of itself,
provided it included that of any States whose interests were specially
affected.” (Paragraph 73, first sentence.)

“Although the passage of only a short period of time is not
necessarily, or of itself, a bar to the formation of a new rule of
customary international law on the basis of what was originally a
purely conventional rule, an indispensable requirement would be
that within the period in question, short though it might be, State
practice, including that of any States whose interests are specially
affected, should have been both extensive and virtually uniform in
the sense of the provision invoked:—-and should moreover have
occurred in such a way as to show a general recognition to the effect
that a rule of law or legal obligation is involved.” (Paragraph 74.)

+
* *

I believe that the Judgment of the Court will guide and help the
Parties in the further negotiations that they will undertake, in compliance
with paragraph (2) of Article | of the Special Agreement, for the purpose
of delimiting the continental shelf in the North Sea as between their
countries.

The agreement among themselves made in accordance with the findings
of the Court and conducted in fulfilment of the principles prescribed by
the Charter of the United Nations, will result in the recognition of their
respective legitimate interests in the continental shelves appertaining to
each of them.

I believe furthermore that the Judgment of the Court in the North Sea
Continental Shelf cases wi// also be a guide in other similar controversies,
to help States settle by negotiation or other peaceful means of their
own choice, their eventual differences in this respect.

(Signed) Luis PADILLA NERVO.

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