130

SEPARATE OPINION OF JUDGE SHAHABUDDEEN

Three decades after the entry into force of the Geneva Convention on
the Continental Shelf of 1958, and following on a great deal of intervening
developments in the field of maritime delimitation, Article 6, paragraph 1,
of the Convention is now being applied for the first time by the Court.
Issues of some difficulty arise. I agree with the Judgment but have reserva-
tions on some points and additional views on others. In Parts I to VI
respectively, I set out my reasoning on (1) the delimitation régime appli-
cable to the continental shelf; (2) proportionality; (3) the disparity in
coastal lengths; (4) the determination of an equitable line; (5) the compe-
tence to establish a single line; and (6) the judicial propriety of drawing a
delimitation line.

PART I. THE DELIMITATION RÉGIME APPLICABLE TO THE
CONTINENTAL SHELF

(i) The Central Issue

The instant case places directly before the Court, as no other case has
done, important questions of interpretation of Article 6, paragraph 1, of
the Geneva Convention on the Continental Shelf of 1958 (the 1958 Con-
vention). Both Parties accepted that this provision established one
combined equidistance-special circumstances rule, but from this point
onwards their positions diverged sharply. Ignoring at this stage alterna-
tive arguments on both sides, Denmark’s position was in effect that this
combined rule was indistinguishable from the rule at customary interna-
tional law, under which equidistance is a non-preferential method among
other possible methods, the choice of any particular method being in each
case made by the application of equitable principles, taking account of the
relevant circumstances. Norway, for its part, contended that, in the
absence of agreement, the question was whether there were special cir-
cumstances, and that if, as it submitted, there was none, then, in terms
of the provision, “the boundary is the median line”. In the words of the
Solicitor-General for Norway:

“The main element of that language is prescriptive and self-
executing: ‘In the absence of agreement . . . the boundary is the
median line.’ There is no detour by way of reference to ‘principles’

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which require ‘application’, as in paragraph 2 relating to adjacent
States. The language is direct and dispositive, and has room for only
one element of appreciation: the proviso for the event that ‘another
boundary line is justified by special circumstances’.” (CR 93/6, p. 43,
18 January 1993, Mr. Haug, Co-Agent for Norway. See also CR 93/8,
pp. 49, 52, 53, 20 January 1993.)

I take the Judgment to mean that the Court in substance upholds the
Norwegian reading of the provision in the sense that, had it found that
there were no special circumstances, it would have had no ground for
shifting the median line, which accordingly would have been the bound-
ary. As this interpretation of the provision may well differ from that more
generally favoured, I feel I should say why I support it.

(ii) The Delimitation Principles of the Geneva Convention on the
Continental Shelf 1958 Apply

It will be convenient first to consider the general question of the applic-
ability of the delimitation provisions of the 1958 Convention. Both Parties
accept that the Convention is in force as between them. Both are also sig-
natories to the 1982 United Nations Convention on the Law of the Sea
(the 1982 Convention). But this they have not ratified, and it is not yet in
force. However, it is generally agreed that the leading principles of the
1982 Convention, or at any rate those relevant to the present case, are
expressive of customary international law, although there may be argu-
ment as to precisely what provisions can be so regarded (see Delimitation
of the Maritime Areas between Canada and France, Decision of 10 January
1992, para. 42 of Arbitrator Prosper Weil’s dissenting opinion, referring to
paragraphs 75 et seq. of the Decision).

In taking the position that the 1958 Convention is still in force, the Par-
ties would not appear to be at variance with such jurisprudence as there
exists on the subject. In the case concerning the Delimitation of the Conti-
nental Shelf between the United Kingdom of Great Britain and Northern
Ireland and the French Republic, 1977 (Reports of International Arbitral
Awards (RIAA), Vol. XVIII, p. 3, at pp. 35-37), France argued that the new
trends which were then evolving, and which later took shape in the
1982 Convention, had rendered obsolete the 1958 Convention, to which
both France and the United Kingdom were parties. The submission was
overruled, the Court of Arbitration holding that, within limits set by cer-
tain French reservations to the 1958 Convention, the latter was in force as
between the two States (ibid., p. 37, para. 48). In the case concerning
Delimitation of the Maritime Boundary in the Gulf of Maine Area, the
Chamber held that the 1958 Convention did not apply to the delimitation

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of a single line for the continental shelf and the fishery zone between
Canada and the United States of America; but the Chamber clearly con-
sidered that the Convention was in force as between the two States in
respect of the continental shelf even as it emerged after 1958 and would
have applied if the shelf alone were being delimited (.C_J. Reports 1984,
p. 301, para. 118, p. 303, para. 124. See also the Canada/France Arbitration,
1992, Decision, paras. 39 and 40, and the 1982 Convention, Arts. 83 and
311).

However, while accepting that the delimitation provisions of Article 6,
paragraph 1, of the 1958 Convention are still in force as between itself and
Norway, Denmark contends that they are inapplicable in this particular
case by reason of the fact that the case is concerned with a delimitation by
a single line of both the continental shelf and the fishery zone. I give my
reasons in Part V for disagreeing with this contention. If Denmark is
wrong on this point, it follows, from its having accepted that the Conven-
tion is in force between itself and Norway, that Article 6, paragraph 1, is
applicable to this particular case.

The arguments on the precise operational relationship between the pro-
visions of the 1958 Convention and those of the 1982 Convention could be
complex, particularly as regards Articles 83 and 311 of the latter (see,
inter alia, Lucius Caflisch, “The Delimitation of Marine Spaces between
States with Opposite or Adjacent Coasts”, in René-Jean Dupuy and
Daniel Vignes (eds.), A Handbook on the New Law of the Sea, Vol. 1, 1991,
p. 479). However, for the reasons given, I propose to proceed on the basis
that the Court is required to apply the delimitation provisions of Article 6,
paragraph 1, of the 1958 Convention as provisions of a general interna-
tional convention “establishing rules expressly recognized by the contest-
ing States” within the meaning of Article 38, paragraph | (a), of the Statute
of the Court. The interpretation of those provisions is another matter. It is
the subject of the remainder of this Part.

(iii) The General Issue of Interpretation Relating to Article 6, Paragraph 1,
of the 1958 Convention

The resolution of the questions of interpretation which arise will make
it necessary to consult a body of case-law the principal items of which are
footnoted below!. They will be referred to in brief as the North Sea cases,

1 North Sea Continental Shelf, I.C.J. Reports 1969, p.3; Delimitation of the Continental
Shelf between the United Kingdom of Great Britain and Northern Ireland and the French
Republic, 1977, RIAA, Vol. XVIII, p. 3; Continental Shelf (Tunisia/Libyan Arab Jamahi-
riya), I.C.J. Reports 1982, p. 18; Delimitation of the Maritime Boundary in the Gulf of
Maine Area, 1.C.J. Reports 1984, p. 246; Continental Shelf (Libyan Arab Jamahiriya/
Malta), I.C.J. Reports 1985, p. 13; and Delimitation of the Maritime Areas between
Canada and France, Decision of 10 June 1992.

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the Anglo-French Arbitration, the Tunisia/Libya case, the Gulf of Maine
case, the Libya/ Malta case, and the Canada/France Arbitration, respec-
tively. However, although these cases may assist, they do not pre-empt
the answers to the questions presented. In the North Sea cases the Court
said:

“Since, accordingly, the foregoing considerations must lead the
Court to hold that Article 6 of the Geneva Convention is not, as such,
applicable to the delimitations involved in the present proceedings, it
becomes unnecessary for it to go into certain questions relating to the
interpretation or application of that provision which would other-
wise arise.” (I.C.J. Reports 1969, p. 27, para. 34.)

The provision was not in issue in the Tunisia/Libya case or in the Libya/
Malta case, Libya not being a party to the Convention. In the Gulf of
Maine case, as has been seen, the Chamber took the view that the provi-

sion, which would otherwise have applied, was inapplicable to the delimi-

tation of a single boundary for the continental shelf and the fishery zone

(LCJ. Reports 1984, pp. 300-303, paras. 115-125). The Court of Arbitra-

tion in the Canada/France Arbitration took a similar view in relation to the

delimitation of an all-purpose line (Canada/France Arbitration, Decision,

paras. 39 and 40). In the Anglo-French Arbitration, the provision was

involved and it did receive an interpretation by the Court of Arbitration

(RIAA, Vol. XVIII, p. 45, para. 70, and p. 57, para. 97). That interpretation

will be considered below.

The literature is heavy with a view that the jurisprudence has placed a
certain interpretation on Article 6 of the 1958 Convention; that, frankly,
that interpretation varies from the terms of the provision and indeed sub-
stantially alters its intent; but that the variation so effected is now an
established part of the living law; and that it is therefore a futile effort
of revisionism, if not simply impermissible, to trouble over the original
meaning of the provision. Respecting that view, a lawyer who goes to
work on the problem would still like to know the precise legal route
through which so remarkable a change has come about. Something more
than impressions is required; it is not enough to be told, however con-
fidently, that, whatever the provision meant in 1958, it now has to be
interpreted and applied in accordance with the jurisprudence as it
has since developed. Yes; but how? And to what extent? The change
could not have occurred through osmosis. If the provision is now to be
understood differently from the way it would have been understood
when made, is this the result of subsequent developments in the law
operating to modify the provision in a legislative sense? If, as it seems,
there has not been any such modification, is the different reading
which the provision must now receive the result of judicial interpretation
which the Court considers that it should follow, even though it is not
bound by any doctrine of binding precedent? If not, how has the trans-

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formation of the original meaning of so important a treaty provision
been managed?

First, as to possible modification. The extent to which the interpretation
and application of a treaty must take account of the subsequent evolution
of the law has been much debated !. That such account must be taken at
any rate in the case of jurisdictional and law-making treaty provisions
seems clear (Aegean Sea Continental Shelf, I.C.J. Reports 1978, pp. 32-34,
paras. 77-80; and, ibid., pp. 68-69, and footnote 1 to p. 69, Judge de Castro,
dissenting). More particularly, later developments in customary interna-
tional law do need to be taken into account in applying the provisions of
the 1958 Convention (Anglo-French Arbitration, 1977, RIAA, Vol. XVIII,
p. 37, para. 48. And see Gulf of Maine, I.C.J. Reports 1984, p. 291, para. 83).

Thus, account must be taken of the fact that Article 76 of the 1982 Con-
vention has introduced a new definition of the outer limit of the continen-
tal shelf. There is little dispute that this replaces the different definition set
out in Article 1 of the 1958 Convention (Tunisia/Libya, I.C.J. Reports
1982, pp. 114-115, paras. 52-53, Judge Jiménez de Aréchaga, separate
opinion). But exactly how this has come about is less clear.

Differences between two rules relating to the same matter may some-
times be resolved by regarding the rules as being really complementary to
each other (Electricity Company of Sofia and Bulgaria, P.C.I.J., Series A/B,
No. 77, pp. 75 ff.; and see, ibid., pp. 136 ff., Judge De Visscher, separate
opinion). In case of irreconcilable conflict (as in this case), an integrated
legal system would provide some method of determining which rule ulti-
mately prevails; for the same facts cannot at one and the same time be
subject to two contradictory rules. Judge Anzilotti did not seem to enter-
tain that possibility when he said,

“Tilt is clear that, in the same legal system, there cannot at the same
time exist two rules relating to the same facts and attaching to these
facts contradictory consequences . . .” (ibid., p. 90, separate opinion.
And see, ibid., p. 105, Judge Urrutia, dissenting. Cf. .C.J. Pleadings,
Nuclear Tests, Vol. I, p. 238, Mr. Elihu Lauterpacht, Q.C.).

How has the problem been resolved in this case? The substitution of the
1982 definition of the continental shelf for the 1958 definition could not

! See, inter alia, M. K. Yasseen, “L’interprétation des traités d’après la convention de
Vienne sur le droit des traités”, 151 Recueil des cours (1976-IIT), pp. 64 ff.; G. E. do Nasci-
mento e Silva, “Le facteur temps et les traités”, 154 Recueil des cours (1977-I), at
pp. 266 ff.; T. O. Elias, “The Doctrine of Intertemporal Law”, 74 American Journal of
International Law (1980), pp. 285 ff.; Sir Humphrey Waldock, “The Evolution of
Human Rights Concepts and the Application of the European Convention on Human
Rights”, in Mélanges offerts à Paul Reuter, 1981, pp. 535, 536, 547; and Sir Ian Sinclair,
The Vienna Convention on the Law of Treaties, 2nd ed., pp. 124-126, 139-140.

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have come about through a treaty displacement, since the 1982 Conven-
tion is not in force. Could it have come about through the customary inter-
national law effect of the new definition on the old? At least in relation to
the normal continental shelf of 200 miles (which is what this opinion is
concerned with), the better view would seem to be that the new limit
operates at the level of customary international law. If the 1958 rule is
regarded solely as a treaty rule, the position is that “a later custom...
prevails over an earlier treaty ...” (Paul Reuter, Introduction to the Law of
Treaties, 1989, pp. 107-108, para. 216). But, of course, the same rule may
exist autonomously under customary international law as well as under
conventional international law!. The limit prescribed by Article 1 of the
1958 Convention was regarded as being also expressive of customary
international law (Tunisia/Libya, I.C.J. Reports 1982, p. 74, para. 101,
referring to the North Sea cases). Considered on this basis, it would
clearly be superseded by the different limit prescribed by later customary
international law as expressed in Article 76 of the 1982 Convention.

Thus, whether the limit prescribed by Article 1 of the 1958 Convention
is treated solely as a treaty rule or also as a rule of customary international
law, it falls to be regarded as having been modified by Article 76 of the
1982 Convention applying as customary international law. Both Parties in
fact proceeded on the basis that the applicable limit is 200 miles in accord-
ance with contemporary customary international law.

But I do not consider that there has been any modification of the deli-
mitation provisions of the 1958 Convention. In the North Sea cases, the
Court said, “Articles 1 and 2 of the Geneva Convention do not appear to
have any direct connection with inter-State delimitation as such” (C.J.
Reports 1969, p. 40, para. 67). The delimitation procedures of Article 6
were not dependent on the particular outer limits fixed for the continental
shelf. Subsequent changes in those limits should not affect the continued
applicability of the procedures. No doubt, as remarked above, any appli-
cation of the delimitation principles of the 1958 Convention would have
to take account of the evolution of the law relating to the subject-matter to
which the application is directed; but I cannot see that this calls for any
modification of the delimitation principles themselves.

States are entitled by agreement to derogate from rules of international
law other than jus cogens (which seems to have little, if any, application in

1 Yearbook of the International Law Commission, 1950, Vol. II, p. 368, para. 29; Mili-
tary and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility, I.C.J. Reports 1984, p. 424, para. 73, and ibid.,
Merits, L.C.J. Reports 1986, pp. 93-94, paras. 174-175.

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this field). Hence they could well establish among themselves a conven-
tional delimitation procedure which is different from that applying under
general international law. I read the North Sea cases to mean that the deli-
mitation régime established by the 1958 Convention was different from
that prevailing under general international law. Nothing in subsequent
developments has operated to put an end to the conventional régime so
established in 1958. Without being lured further into the history of the
subject, one may note the successful opposition to any mention of equi-
distance being made in the delimitation provisions of the 1982 Conven-
tion; but the Parties have, correctly in my view, not suggested that
anything in this Convention operates to modify the delimitation provi-
sions of the 1958 Convention in those cases in which these provisions

apply.

So far for modification. Now for judicial interpretation. To the extent, if
any, that the 1958 delimitation text has been the subject of interpretation
by the Court, I should be slow to differ, particularly when regard is had to
the role of the Court in developing the law. But, as indicated in para-
graph 45 of today’s Judgment, there has never been any concrete case fall-
ing to be decided by the Court under that provision and the Court has not
therefore had occasion to pronounce authoritatively on the interpretation
of its precise terms. As observed above, an interpretation was made by the
Anglo-French Court of Arbitration (RIAA, Vol. XVIII, pp. 44-45,
paras. 68 and 70, and p. 51, para. 84). For reasons to be later given, my
respectful submission is that there is not a sufficiency of reason for this
Court to follow that decision.

The position, as I see it, is that, where as a matter of treaty obligation the
delimitation of the continental shelf between parties is governed by the
delimitation provisions of the 1958 Convention, as is the case here, the
duty of the Court is not to apply any jurisprudence relating to those provi-
sions, but to apply the provisions themselves in the sense in which they are
to be understood when construed in accordance with the applicable
principles of treaty interpretation. The question then is: in what sense are
the provisions to be understood when so construed?

(iv) Equidistance Is per se a Technical Method, but; as Set Out in Article 6
of the 1958 Convention, It Forms Part of a Rule of Law

I do not enter into the view, for which there is high authority, that the
idea of equidistance is not inherent in the concept of the continental shelf
(North Sea, I.C.J. Reports 1969, p. 23, para. 23, pp. 33-34, paras. 48-50, and
pp. 46-47, para. 85). By itself, equidistance is a technical method and nota
principle of international law. But there is nothing which can seriously
suggest that the use of a technical method in prescribed circumstances

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cannot be commanded by a rule of law. “[T]he real question”, as was cor-
rectly submitted by Professor Jaenicke (to whose arguments on the
1958 Convention I shall be referring with some frequency),

“is not whether the equidistance method is a rule or principle of law,
which it is certainly not, but rather whether there is any rule of law
which prescribes under which circumstances the equidistance
method determines the boundary” (1. CJ. Pleadings, North Sea Con-
tinental Shelf, Vol. I, p. 13).

It seems to me that there is such a rule, namely, a rule which provides, in
mandatory terms, that the equidistance method is to be used to establish
the boundary where agreement and special circumstances are both
absent.

No doubt, as remarked by Professor Jaenicke:

“When the experts recommended the equidistance method to the
International Law Commission in 1953 and spoke of the ‘principle’
of equidistance, they certainly did not recommend it as a ‘principle of
law’... They rather understood it as a principle of geometric con-
struction which might be used for defining the boundary .. .” (Ibid.)

But the International Law Commission was a commission of jurists, not a
committee of technical experts. It was effectively the Commission which
adopted the method in relation to the case of the continental shelf. To be
sure, equidistance per se remained a geometric method even as incorpo-
rated in Article 6, paragraph 1, of the 1958 Convention. But it now held a
place within the normative framework of a treaty provision, which stipu-
lated that, in certain circumstances, the boundary is the median line. As
therein used it became part of a rule of law. With his usual grasp of prin-
ciples, Judge Tanaka put the matter this way:

“We have before us a technical norm of a geometrical nature,
which is called the equidistance rule, and may serve a geographical
purpose. This norm, being in itself of a technical nature, constitutes a
norm of expediency which is of an optional, i.e., not obligatory
character, and the non-observation of which does not produce any
further effect than failure to achieve the result it would have ren-
dered possible. This technical norm of a geometrical nature can be
used as a method for delimiting the continental shelf. The legis-
lator, being aware of the utility of this method for legal purposes,
has adopted it as the content of a legal norm.

Thus the equidistance method as a simple technique is embodied
in law, whether in Article 6, paragraph 2, of the Geneva Convention

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orin corresponding customary international law. By being submitted
to a juridical evaluation and invested with the character of a legal
norm, it has acquired an obligatory force which it did not have as a
simple technical norm.” (North Sea, I.C.J. Reports 1969, pp. 182-183.)

That was stated in the course of a dissenting opinion. But it seems to me
that the Court itself also recognized that Article 6 of the 1958 Convention
did have the effect of imparting normative force to the technical method
of equidistance when it said:

“In the light of these various considerations, the Court reaches the
conclusion that the Geneva Convention did not embody or crystal-
lize any pre-existing or emergent rule of customary law, according to
which the delimitation of continental shelf areas between adjacent
States must, unless the Parties otherwise agree, be carried out
on an equidistance-special circumstances basis. A rule was of course
embodied in Article 6 of the Convention, but as a purely conven-
tional rule. Whether it has since acquired a broader basis remains to
be seen: gua conventional rule however, as has already been con-
cluded, it is not opposable to the Federal Republic.” (Ibid. p. 41,
para. 69.)

Thus, the Convention did not represent any customary rule of law requir-
ing a delimitation to be carried out, in the absence of agreement, on an
equidistance-special circumstances basis; but there was no doubt that “[a]
rule was... embodied in Article 6 of the Convention”, and simple inspec-
tion would show that that rule did incorporate a requirement for the use of
the equidistance method in certain circumstances.

In the Gulf of Maine case the Chamber seemed to recognize that
“special international law” can

“include some rule specifically requiring the Parties, and conse-
quently the Chamber, to apply certain criteria or certain specific
practical methods to the delimitation that is requested” (CJ.
Reports 1984, p. 300, para. 114).

In my opinion, Article 6 of the 1958 Convention does include a rule speci-
fically requiring the use of equidistance as a practical method of delimi-
tation when certain prescribed conditions are satisfied.

(v) The Equidistance-Special Circumstances Provision Consists of a Rule
Requiring the Use of Equidistance Subject to an Exception If There Are
Special Circumstances

For all that the literature might suggest to the contrary, it does not seem
possible to erase a distinction which Article 6, paragraph 1, of the
1958 Convention prima facie establishes between the median line part

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and the special circumstances part of the provision when it provides that,
“fijn the absence of agreement, and unless another boundary is justified
by special circumstances, the boundary is the median line”. In applying
either of the two parts, regard must obviously be had to the other, and in
this sense I accept that they establish one single combined rule; but this
does not obliterate the fact that this single combined rule does consist of
two parts. It is difficult to apprehend how the evident distinction between
these two parts and the relationship of rule and exception which that dis-
tinction establishes between them are removed by simply calling them the
“equidistance-special circumstances” rule. To use a label as a substitute
for analysis is to risk what, in another context, T. J. Lawrence called “the
reproach of mistaking obscurity for profundity”!.

The question is : what is the precise relationship between that part of the
rule which refers to equidistance and that part which refers to special cir-
cumstances? The argument of the Federal Republic of Germany in the
North Sea cases was that —

“[tlhe discussion [in the International Law Commission] on the reser-
vation of ‘special circumstances’ showed that this clause was under-
stood 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 equi-
distance method” (I.C.J. Pleadings, North Sea Continental Shelf,
Vol. I, p. 68).

On this the Danish comment (in the North Sea cases), which has not lost
relevance in the light of the subsequent treatment of the subject, was
that —

“(t]he Federal Republic further seeks . .. to undermine the legal force
of the ‘equidistance principle’ by so inflating the scope of the ‘special
circumstances’ exception as almost to make the ‘equidistance prin-
ciple’ the exception rather than the rule” (ibid., p. 205).

One knows that, in response to concern expressed in the International
Law Commission about possible hardship which might be produced by
the equidistance method in certain circumstances, the Special Rappor-
teur, Professor François, suggested that equidistance should be recog-
nized only “as a general rule”, but that that suggestion encountered
opposition, whereupon Mr. Spiropoulos proposed a reservation reading,
“unless another boundary line is justified by special circumstances”

1 T. J. Lawrence, The Principles of International Law, 7th ed., 1930, preface to the first
edition, p. vii.

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(Yearbook of the International Law Commission, 1953, Vol. I, p. 130,
para. 62). Obviously, the inclusion of the words “as a general rule” could
have subverted the equidistance provision. Hersch Lauterpacht con-
tended that “it was at least arguable that they deprived the rule of its legal
character” (ibid., p. 128, para. 47). Without putting it so high, one might
concede that that, at any rate, could be the practical result of using the
adjectival form of what Mr. Albert Thomas once referred to as “the notor-
ious word ‘generally’ which is found in a great many documents” (Compe-
tence of the ILO in Regard to International Regulation of the Conditions of
Labour of Persons Employed in Agriculture, P.C.I.J., Series C, No. 1, p. 136).
It seems clear that the Spiropoulos reservation, which was accepted, was
intended to avert such a risk and to preserve the integrity of the provision
subject only to an exception.

Well known as it is, it is useful to recall that the International Law Com-
mission’s own commentary on the draft provision which eventually
became Article 6 of the 1958 Convention was as follows:

“81. Inthe matter of the delimitation of the boundaries of the con-
tinental shelf the Commission was in the position to derive some
guidance from proposals made by the committee of experts on the
delimitation of territorial waters. In its provisional draft, the Com-
mission, which at that time was not in possession of requisite techni-
cal and expert information on the matter, merely proposed that the
boundaries of the continental shelf contiguous to the territories of
adjacent States should be settled by agreement of the parties and that,
in the absence of such agreement, the boundary must be determined
by arbitration ex aequo et bono. With regard to the boundaries of the
continental shelf of States whose coasts are opposite to each other,
the Commission proposed the median line — subject to reference to
arbitration in cases in which the configuration of the coast might give
rise to difficulties in drawing the median line.

82. Having regard to the conclusions of the committee of experts
referred to above, the Commission now felt in the position to formu-
late a general rule, based on the principle of equidistance, applicable
to the boundaries of the continental shelf both of adjacent States and
of States whose coasts are opposite to each other. The rule thus pro-
posed is subject to such modifications as may be agreed upon by the
parties. Moreover, while in the case of both kinds of boundaries the
rule of equidistance is the general rule, it is subject to modification in
cases in which another boundary line is justified by special circum-
stances. As in the case of the boundaries of coastal waters, provision
must be made for departures necessitated by any exceptional confi-
guration of the coast, as well as the presence of islands or of navigable
channels. To that extent the rule adopted partakes of some elasticity.
In view of the general arbitration clause . .. no special provision was
considered necessary for submitting any resulting disputes to arbitra-

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tion. Such arbitration, while expected to take into account the special

circumstances calling for modification of the major principle of equi-

distance, is not contemplated as arbitration ex aequo et bono. That
major principle must constitute the basis of the arbitration, conceived as
settlement on the basis of law, subject to reasonable modifications

necessitated by the special circumstances of the case.” (Yearbook of
the International Law Commission, 1953, Vol. I, p. 216, paras. 81-82,

footnote omitted; emphasis added. And see I.C.J Pleadings, North
Sea Continental Shelf, Vol. I, p. 181.)

The stress laid by the International Law Commission (not by the Com-
mittee of Experts) on the equidistance provision as “the general rule ...
subject to modification in cases in which another boundary line is justi-
fied by special circumstances”, or as that “major principle . . . subject to
reasonable modifications necessitated by the special circumstances of the
case”, is not reconcilable with any suggestion that the Commission
regarded the “special circumstances” reservation as “an alternative of
equal rank to the equidistance method” (see also I.C.J. Pleadings, North
Sea Continental Shelf, Vol. I, pp. 203 ff., Counter-Memorial of Denmark).

No doubt, as has been pointed out by some writers, it is possible to
detect increased interest at the 1956 proceedings of the International Law
Commission, and also at the proceedings of the Fourth Committee of the
United Nations Conference on the Law of the Sea 1958, in the necessity to
secure an equitable boundary through the use of the “special circum-
stances” provision in those cases where, because of such circumstances,
the use of the equidistance method would result in inequity. Adverting in
1956 to such circumstances, the International Law Commission did say
that “[tlhis case may arise fairly often, so that the rule adopted is fairly
elastic” (Yearbook of the International Law Commission, 1956, Vol. II,
p. 300). And there is, indeed, a great deal in the preparatory work of the
Commission to show how indispensable the exception was thought to be
to the working of the rule (North Sea, I.CJ. Reports 1969, pp. 92-95,
Judge Padilla Nervo, separate opinion). Speaking in the Commission in
1956, Sir Gerald Fitzmaurice took the position that —

“special circumstances would be the rule rather than the exception,
owing to the technical difficulty of applying an exact median line and
to the possibility that such application would be open to the objec-

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tion that the geographical configuration of the coast made it inequi-
table, because, for example, the low-water mark, which constituted
the baseline, was liable to physical change in the course of time by
silting. The point should be made in the comment that exceptional
cases were liable to arise fairly frequently.” (Yearbook of the Interna-
tional Law Commission, 1956, Vol. I, p. 152, para. 28.)

But the reasons given there for holding that “special circumstances would
be the rule rather than the exception” related to the practical operation of
the provision, and not to its juridical character. However frequently it
might be necessary to have recourse to special circumstances, this could
not alter the legal structure of the provision, which clearly cast equi-
distance as the rule, with special circumstances as the exception.

To return to the debate in the North Sea cases, the position was well put
by Sir Humphrey Waldock when he submitted “that the very words
‘unless’ and ‘special’ stamp the clause with the hallmark of an exception”
(1.C.J. Pleadings, North Sea Continental Shelf, Vol. IT, p. 267), and when he
added later:

“In our view the word ‘unless’, the phrase ‘another boundary line’,
the phrase ‘is justified’ and the phrase ‘special circumstances’ indi-
vidually and in combination categorically characterize the clause as
an exception to the ‘general rule’ or, as the Commission said, ‘major
principle’ of equidistance.” (Jbid., p. 280.)

These cogent arguments must have weighed with the Court when, in its
own considered turn, it spoke of “the exception in favour of ‘special cir-
cumstances’” (I.C.J. Reports 1969, p. 36, para. 55; emphasis added).
Scarcely striking a different note, in 1977 the Anglo-French Court of Arbi-
tration referred to the provision as “the ‘special circumstances’ condition”
(RIAA, Vol. XVIII, p. 45, para. 70; emphasis added).

Interestingly, speaking some years later as counsel for Canada in the
Gulf of Maine case, Professor Jaenicke put it this way:

“Even if the equidistance method and the presence of special cir-
cumstances have to be considered together in appreciating all of the
circumstances of the case, it remains nevertheless true that under
Article 6 the application of the equidistance method or the use of
some other method because of special circumstances stand in rela-
tionship to each other as rule and exception.” (1.C_J. Pleadings, Deli-
mitation of the Maritime Boundary in the Gulf of Maine Area, Vol. VII,

p. 51.)

In the North Sea cases, Judge Morelli, in an argument of some refine-
ment, did not think that the reference to special circumstances was “a true

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exception”, but he accepted that “all the Parties to the present cases have
always referred to it as an ‘exception’” (.C.J. Reports 1969, p. 206, dis-
senting opinion; emphasis added). With respect, I think the Parties
were right, and some of the other Judges seemed to think so too (ibid.,
pp. 186-187, Judge Tanaka, dissenting; pp. 220 and 239, Judge Lachs, dis-
senting; and p. 254, Judge ad hoc Sorensen, dissenting. Cf. Judge Padilla
Nervo, separate opinion, ibid., p. 92, and Judge Ammoun, separate opin-
ion, ibid., p. 148, para. 52). Indeed, as mentioned above, even the Court
referred to the clause as an “exception” (ibid., p. 36, para. 55). It needs to
be added that, in denying that the “special circumstances” limb was a true
exception, Judge Morelli was really seeking to enhance the primacy of the
equidistance limb, and not to diminish it. I do not see how it is possible to
refute Judge ad hoc Sorensen’s conclusion that —

“[a] natural construction of the wording of the provision, in particular
the words ‘unless another boundary line is justified . . ”, seems to
indicate that the principle of equidistance is intended to be the main
tule, and the drawing of another boundary line an exception to
this main rule. This general understanding of the provision seems to
be confirmed by the travaux préparatoires, including in particular the
1953 report of the Committee of Experts and the reports of the Inter-
national Law Commission in 1953 and 1956.” (Jbid., p. 254.)

In sum, important as was the “special circumstances” provision, its
importance was nevertheless not such as to extinguish the essential dis-
tinction between rule and exception which the very structure and terms of
the provision ineluctably presented. One must distinguish between the
practical operation of a provision and the juridical character of its struc-
ture. A principle subject to an exception does not cease to be a principle
(see Sir Robert Jennings, “The Principles Governing Marine Bounda-
ries”, in Staat und Vülkerrechtsordnung, Festschrift für Karl Doehring,
1989, p. 397, at p. 399). However often the circumstances contemplated by
the exception may arise, the resulting frequency of recourse to the excep-
tion and the accompanying elasticity of the whole provision do not abate
the juridical character of the exception as an exception or that of the
general rule as the general rule; in law, the subordinate character of the
exception as a safeguard to the working of the rule remains. As was said by
Judge de Castro, “The flexibility of a rule is not a reason for denying its
existence” (Fisheries Jurisdiction (United Kingdom v. Iceland), LC.J.
Reports 1974, p. 96, separate opinion). Or, to adapt the words of
Judge Read, “the importance of [the rule] cannot be measured by the fre-
quency of [its] exercise” (International Status of South West Africa, I.C.J.
Reports 1950, p. 169, separate opinion). I believe it is a generally accepted
principle of construction that an exception, like a proviso, cannot be so
read as to cancel out the legal effect of the main rule. This can happen only

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where the exception is in fact repugnant to the rule!, in which case the
whole provision might well fall. Mere frequency of recourse to an excep-
tion is not proof of repugnance between rule and exception; and, unless it
is, it cannot, in my view, serve to deprive the rule of its juridical character
as a rule (cf. Tunisia/Libya, I.C.J. Reports 1982, p. 197, para. 64,
Judge Oda, dissenting).

The propensity to think in terms of Article 6, paragraph 1, of the
1958 Convention as being a single combined equidistance-special circum-
stances rule which is equivalent to the equitable principles-relevant cir-
cumstances rule of customary international law is not well supported. In
my submission, that thinking resolves itself, under scrutiny, into a too
hasty attempt to liquidate that part of the “combination” which is indis-
putably a rule and to supplant it by that part which is as clearly an excep-
tion, and to do so without saying, because it cannot be said, that the
exception is repugnant to the rule; and yet, analytically, it is only if there is
such a repugnance that the rule, and the distinctive position which it mani-
festly accords to equidistance, can be neutralized.

(vi) The Use of the Equidistance Method Can Be Obligatory under Article 6
of the 1958 Convention

I come next to the question whether the use of the equidistance method
is ever obligatory under Article 6, paragraph 1, of the 1958 Convention.
Denmark submits that the equidistance rule set out in the provision “is not
of an obligatory character, not even as a starting point for a delimitation”
(Memorial, Vol. I, p. 60, para. 212). By contrast, the Norwegian case
proceeds on the footing that, absent both an agreement and special
circumstances, the equidistance rule is mandatory under Article 6, para-
graph I.

Judicial statements are easily come by to the effect that the equidistance
method is not compulsory at customary international law (see, for
example, Tunisia/Libya, I.C.J. Reports 1982, p. 79, para. 110). But there is
no clear pronouncement by this Court to that effect so far as the applica-
tion of Article 6 of the 1958 Convention to a concrete case is concerned.

Briefly, it appears to me that to hold that the equidistance rule could

never operate compulsorily under Article 6, paragraph 1, of the 1958 Con-
vention would be to breach the Court’s own declaration that its function is

Î See, in English law, Maxwell on the Interpretation of Statutes, 12th ed., 1969,
pp. 190-191; and Craies on Statute Law, 7th ed., 1971, pp. 218-220.

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“to interpret .. ., not to revise” a treaty!. Nor does it appear that the case-
law would safely support such a holding.

To begin with the North Sea cases themselves, it seems plausible that
the whole assumption behind the elaborate enquiry which the Court con-
ducted into the question whether the Federal Republic of Germany was
bound by the 1958 Convention was that, if it was, the provisions of Ar-
ticle 6 concerning equidistance would necessarily apply unless there were
special circumstances, there being no agreement. True, the Judgment
includes remarks of an amplitude which might suggest that the equidis-
tance method is in any event not mandatory even under Article 6 of the
Convention (1.C.J. Reports 1969, pp. 23-24, paras. 21-24, and pp. 45-46,
para. 82). But the Court did say that

“Article 6 is so framed as to put second the obligation to make use
of the equidistance method, causing it to come after a primary obliga-
tion to effect delimitation by agreement” (ibid, p. 42, para. 72;
emphasis added).

Thus, however the obligation to use the equidistance method might be
ranked, the Court did refer to it as an “obligation”, as it plainly was; even
if it came second, it was an “obligation” in the same juridical sense in
which there was an “obligation to effect delimitation by agreement”. That
the Court accepted that Article 6 of the Convention did create an obliga-
tion to use the equidistance method would seem to have been recognized
by Judge Ammoun and Vice-President Koretsky (ibid., pp. 149-150, sepa-
rate opinion, and pp. 154-155, dissenting opinion, respectively). The
Court’s statements on the point may be harmonized by taking the view
that any suggestion by it that equidistance was not obligatory under the
1958 Convention is to be understood not in an absolute sense, but in the
qualified sense that it was not obligatory in all cases.

In the Anglo-French Arbitration the Court of Arbitration distinctly
stated —

“that under Article 6 the equidistance principle ultimately possesses
an obligatory force which it does not have in the same measure under
the rules of customary law; for Article 6 makes the application of the
equidistance principle a matter of treaty obligation for Parties to the
Convention” (RIAA, Vol. XVIII, p. 45, para. 70; emphasis added).

l Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase,
LCJ. Reports 1950, p. 229. And see Acquisition of Polish Nationality, P.C.LJ., Series B,
No. 7,p.20; Serbian Loans, P.C.LJ. Series A, No. 20/21, p.32; and Rights of Nationals of
the United States of America in Morocco, I.C.J. Reports 1952, p. 196. .

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Speaking still with reference to that provision, the Court of Arbitration
later said:

“Tn the absence of agreement, and unless another boundary is jus-
tified by special circumstances, the boundary is to be the line which is
equidistant from the nearest points of the baselines from which the
breadth of the territorial sea of each State is measured.” (RIAA,
Vol. XVIII, p. 111, para. 238; emphasis added.)

In the Gulf of Maine case, the Chamber likewise took the view that —

“Gf a question as to the delimitation of the continental shelf only had
arisen between the two States, there would be no doubt as to the
mandatory application of the method prescribed in Article 6 of the
Convention, always subject, of course, to the condition that recourse
is to be had to another method or combination of methods where
special circumstances so require” (ZCJ. Reports 1984, p. 301,
para. 118; emphasis added. And see ibid., p. 301, para. 116).

Judge Gros, dissenting, added:

“The 1958 Convention on the Continental Shelf posits an equi-
distance/special-circumstances rule, a single rule which is clear: if
there are no special circumstances, equidistance must be applied.”
(ibid., p. 387, para. 46; emphasis added.)

In the Libya/Malta case, the Court said:

“In thus establishing, as the first stage in the delimitation process,
the median line as the provisional delimitation line, the Court could
hardly ignore the fact that the equidistance method has never been
regarded, even in a delimitation between opposite coasts, as one to be
applied without modification whatever the circumstances. Already,
in the 1958 Convention on the Continental Shelf, which imposes
upon the States parties to it an obligation of treaty-law, failing agree-
ment, to have recourse to equidistance for the delimitation of the con-
tinental shelf areas, Article 6 contains the proviso that that method is
to be used ‘unless another boundary line is justified by special cir-
cumstances’.” (1.C.J. Reports 1985, p. 48, para. 65; emphasis added.)

Thus, a different line may well be established by agreement or through the
operation of “special circumstances”; but, failing these, the Convention
unquestionably “imposes upon the States parties to it an obligation of
treaty-law ...to have recourse to equidistance . . .”, that “method” being
one which “is to be used...” in those circumstances.

In the Canada/France Arbitration, it would appear that, as in the Gulf
of Maine case, the Court of Arbitration, at least by implication, also took
the position that, if the continental shelf alone were involved, it would
have been obligatory to apply equidistance under Article 6 of the

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1958 Convention, unless special circumstances were present (Decision,
10 June 1992, paras. 39 and 40).

Naturally, if there is a dispute as to whether there are in fact special
circumstances, this must be settled in some appropriate way, possibly by
agreement or, as is sought to be done in these proceedings, by adjudica-
tion. Referring to the régime of Article 6 of the 1958 Convention, the mat-
ter was put this way by Professor Jaenicke in the North Sea cases:

“If the Parties agree that there are no special circumstances then
the equidistance boundary is the boundary, but if the Parties are in
dispute as to whether there are special circumstances or not, the mat-
ter has to be settled either by agreement or by arbitration.” (1.CJ.
Pleadings, North Sea Continental Shelf, Vol. IL p. 52.)

A dispute as to whether special circumstances exist is not insoluble. It may
be determined “either by agreement or by arbitration” (including judicial
settlement). If the determination is that special circumstances do not
exist, then, to adopt the argument, “the equidistance boundary is the
boundary”.

(vii) “Special Circumstances” Are Narrower
than “Relevant Circumstances”

The mechanism of equating the equidistance-special circumstances
rule of the 1958 Convention with the equitable principles-relevant cir-
cumstances rule of customary international law depends largely upon an
assimilation of “special circumstances” to “relevant circumstances”. In
this respect, Denmark submits :

“With reference to situations where no agreement has been
reached between the Parties, Article 6.1 sets out a rule of equidis-
tance, a rule which, however, is not of an obligatory character, not
even as a starting point for a delimitation. This follows from the
wording of Article 6.1, ‘... unless another boundary is justified by
special circumstances .. .,’. That wording is interpreted as having in
view the achievement of equitable solutions taking into considera-
tion the relevant special circumstances of each particular case of deli-
mitation.” (Memorial, Vol. I, p. 60, para. 212.)

The implication in the last sentence that there are “relevant special
circumstances” in each case seems clear. Is it also right?

There seems to be force in the argument that the category “special
circumstances” is narrower than that of “relevant circumstances”
(LCJ. Pleadings, Continental Shelf (Libyan Arab Jamahiriya/Malta,
Vol. IJ, Counter-Memorial of Malta, p. 292, para. 108). No doubt there is a

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sense in which it can be said that every situation has its “special circum-
stances”; but the “special circumstances” which count under Article 6,
paragraph 1, of the 1958 Convention are limited to those which justify a
boundary other than an equidistance line on the ground that the latter will
create an inequity which can be avoided only by using some other method
or methods of delimitation.

The expression “special circumstances” is aptly used in a provision
operating as an exception to a rule requiring the application of the equi-
distance method in the absence of agreement; it is inapt if sought to be
read as a reference to all relevant circumstances in the light of which a
choice is to be made among any of a number of possible methods (includ-
ing equidistance) with a view to producing the most equitable delimita-
tion. In the former case, the circumstances are “special” in the sense that
they create inequity if a particular delimitation method — that of equidis-
tance — is applied and accordingly operate to justify the putting aside of
the rule requiring the use of that method; in the latter case, the circum-
stances are simply those which are “relevant” to the choice of the most
equitable method of delimitation (including equidistance as a possible
method) and not only those which justify putting aside a rule of law
requiring the use of that particular method (see Charles Vallée, “Le droit
des espaces maritimes”, in Droit international public, Paris, 4th ed., 1984,
p. 375).

In effect, under Article 6, paragraph 1, of the 1958 Convention, the equi-
distance method applies not because “special circumstances” require it to
apply, but because there are no “special circumstances” to prevent it from
applying. By contrast, under customary international law, the equidis-
tance method applies only where the “relevant circumstances” require its
application. Combining these two perspectives, one may say that, whereas
“relevant circumstances” may well require the application of equidis-
tance, “special circumstances” can only operate to exclude it, and never to
apply it. Hence, as compared with “relevant circumstances”, “special cir-
cumstances” are both narrower in scope and exclusionary in effect in rela-
tion to the use of the equidistance method. Relevant circumstances exist in
all cases; special circumstances exist only in some. A question can arise as
to whether special circumstances exist, and, when it arises, it may be
resolved, by agreement or other form of determination, to the effect that
such circumstances do or do not exist. No question can ever arise as to
whether relevant circumstances exist, for they always do.

The preparatory work of the International Law Commission does serve
to emphasize the importance attached to the “special circumstances” pro-
vision, but it is far from suggesting that the Commission considered that
special circumstances inhered in every case. The provision was formu-
lated in terms of providing, exceptionally, for a non-equidistance line

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(including a modified equidistance line) where the existence of special
circumstances justified such a line as opposed to an equidistance line. The
necessary assumption was that special circumstances would not exist in
all cases. Were it otherwise, the foundation of the main rule would largely
disappear and, with it, the usefulness of the rule itself; such a consequence
stands excluded by the principle that an interpretation which would
deprive a treaty of a great part of its value is inadmissible (Acquisition of
Polish Nationality, P.C.I.J., Series B, No. 7, p. 17; and Minority Schools in
Albania, P.C.I.J., Series A/B, No. 64, p. 20).

If the reference to the median line in Article 6, paragraph 1, of the
1958 Convention was intended merely to indicate one of any number of
possible methods of delimitation, with the choice among them being
always made by reference to equitable principles, taking account of the
relevant circumstances, the drafters took care to conceal the intention. On
that hypothesis, there was little point in singling out that particular
method or, indeed, in speaking specifically of “special circumstances”
which justify some other boundary; it would have sufficed, and should
have been simpler, to state that, in the absence of agreement, the boundary
was to be that justified by equitable principles, taking account of the rele-
vant circumstances. As remarked above, if this were the correct meaning,
it is difficult to see why, except for theoretical reasons, the Court in 1969
troubled itself with the question whether the provision was applicable, for
the régime under the provision would have been the same as that under
customary international law. As it happened, the Court reached the con-
clusion that the provision was not declaratory of the position under cus-
tomary international law (.C_J. Reports 1969, p. 41, para. 69). However it
came about, the provision, as drafted, would seem to have been designed
to present equidistance in a position of prominence, which was to yield to
some other delimitation method only if there were special circumstances
which justified another boundary. There is nothing of consequence in the
relevant International Law Commission material, or indeed in that of the
Geneva Conference of 1958, to set against this view.

(viii) There Are Limits to the Mandatory Application of Equitable Principles,
as, for Example, in the Case of a Delimitation by Agreement

Obviously, where special circumstances exist, the role of equitable
principles will be conspicuous in ascertaining what boundary is justified
by such circumstances. But the straining in the effort to treat equitable
principles as mandatorily and directly applying to every conceivable
delimitation is apparent in repeated statements to the effect that
any agreement is to be negotiated on the basis of such principles. No
doubt, that should be the general aim; but with what effect if an agree-

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ment is in fact reached otherwise than on the basis of the equities of the
case?

A delimitation effected by agreement may be presumed to accord with
equity; but the presumption is rebuttable. As remarked by the Court in the
North Sea cases themselves,

“Without attempting to enter into, still less pronounce upon any
question of jus cogens, it is well understood that, in practice, rules of
international law can, by agreement, be derogated from in particular
cases, or as between particular parties...” (C.J. Reports 1969, p. 42,
para. 72; and see Lighthouses in Crete and Samos, P.C.I.J., Series A/B,
No. 71, p. 150, second paragraph, Judge ad hoc Séfériadès, separate
opinion).

In a delimitation agreement a party is competent to make concessions on
political and other grounds having nothing to do with the intrinsic merits
of its maritime claims (North Sea, .C.J. Reports 1969, p. 155, Vice-Presi-
dent Koretsky, dissenting); a party may quite competently and validly dis-
pose of its rights (ibid., p. 205, para. 10, Judge Morelli, dissenting). For
example, a State concerned with another State in respect of two distinct
and wholly unrelated geographical areas may make concessions in one
area in exchange for concessions in the other (for a possible case of “trade-
off” between two different geographical areas, see the Agreement
between the United States of America and Mexico of 4 May 1978 relating
to the Maritime Boundaries between the two countries, Counter-Memo-
rial, Vol. 2, Ann. 65, pp. 248 ff., and Reply, Vol. 1, p. 92, para. 245). The
agreement reached will be binding because it is a treaty; and yet it almost
certainly will not reflect the equities in the geographical areas concerned,
each taken by itself. On the contrary, it may have everything to do with
considerations extraneous to the equities. As remarked by Judge Gros,
dissenting : “Two States may negotiate a single boundary which suits them
without going into the question of whether the result is equitable.” (Gulf
of Maine, I.C.J. Reports 1984, p. 370, para. 16. And see Sir Robert Y.
Jennings, “The Principles Governing Marine Boundaries”, op. cit., at
pp. 401 ff.)

The real object of the requirement to proceed by way of agreement was
to avoid problems of opposability arising from unilateral delimitations
(North Sea, I.C.J. Reports 1969, p. 184, Judge Tanaka, dissenting; Tunisia/
Libya, .C.J. Reports 1982, p. 194, para. 60, Judge Oda, dissenting; Gulf of
Maine, I.C.J. Reports 1984, p. 292, para. 87; and Libya/Malta, ICI.
Reports 1985, p. 141, paras. 32-33, Judge Oda, dissenting). The fact that the
efficacy of such a delimitation as regards other States depends on interna-
tional law had been earlier pointed out (the Fisheries case, C.J. Reports
1951, p. 132. And see, later, the Fisheries Jurisdiction (United Kingdom
v. Iceland), Merits, I.C.J. Reports 1974, p. 22, para. 49, and p. 24, para. 54).

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It was not the object of the framers of the provision to ensure that equi-
table principles would mandatorily or necessarily operate through the
machinery of treaty-making.

In the North Sea cases the Parties had, by their Special Agreement,
undertaken

“to effect such a delimitation ‘by agreement in pursuance of the deci-
sion requested from the... Court’ — that is to say on the basis of, and
in accordance with, the principles and rules of international law
found by the Court to be applicable” (.C.J. Reports 1969, p. 13,
para. 2).

Thus, a treaty obligation had been undertaken to reach agreement in
accordance with the principles and rules of international law found by the
Court to be applicable. The Court accordingly cast its decision in the form
of principles and rules to be observed in the course of the projected nego-
tiations (ibid., p. 46, para. 84. And see Prosper Weil, Perspectives du droit de
la délimitation maritime, 1988, pp. 114-123). There was no occasion for the
Court to say what it had already said in paragraph 72 of the Judgment, that
in practice parties could consensually derogate from those principles and
rules. Correctly construed, the North Sea cases did not intend to lay it
down that a delimitation agreement could only be negotiated and con-
cluded in accordance with equitable principles. Nor can Article 74,
paragraph 1, and Article 83, paragraph 1, of the 1982 Convention be so
interpreted; the possibility of consensual derogation always remains.

If then equitable principles do not apply mandatorily to the making ofa
delimitation agreement, that circumstance may be borne in mind in con-
sidering, in the next Section, the extent to which the applicability of the
median line method under the 1958 Convention is dependent on such
principles, as distinguished from being dependent on the absence of
agreement and of special circumstances.

(ix) If Only Marginally, the 1958 Convention Envisages a Wider Use of the
Equidistance Method than Does Customary International Law

No doubt the general idea which inspired the drafting of the 1958 Con-
vention was the desirability of achieving an equitable solution in all cases.
But it is important to distinguish an idea inspiring a provision from
the way in which the provision seeks to give effect to the idea. In the first
Genocide Convention case, the Court wrote,

“The high ideals which inspired the Convention provide, by virtue
of the common will of the parties, the foundation and measure of all its

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provisions.” (Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, .C.J. Reports 1951, p. 23;
emphasis added.)

Thus, the inspiring ideals provide “the foundation and measure” of the
provisions of the Convention; but they do so only “by virtue of the com-
mon will of the parties”, and that will is of course expressed in the relevant
provisions of the Convention. The ideals may, indeed, explain the provi-
sions; but they do not exert an independent force from outside of the pro-
visions as if the provisions simply did not exist. In this case, in the absence
of both agreement and special circumstances, the particular provision
itself regards the equidistance line as the appropriate method of achieving
an equitable solution. Professor Jaenicke put it well when he submitted to
the Chamber in the Gulf of Maine case —

“that Article 6 presumes that the equidistance method yields an equi-
table result as long as no special circumstances are apparent which
might cast doubt on the equitableness of such a boundary” (CJ.
Pleadings, Delimitation of the Maritime Boundary in the Gulf of Maine
Area, Vol. VIT, p. 51).

That is correct. In the absence of an agreement and special circum-
stances, the parties have, through the Convention, already agreed that an
equidistance line would be equitable, and it is their agreement as to what is
equitable which matters. It is the duty of the Court to keep faith with the
will of the parties as so expressed and not to substitute its own conception
of what would be an equitable solution in such conditions. It helps to tem-
per any disposition to make such a substitution to bear in mind that, as a
matter of general jurisprudence, an indeterminate legal concept (such as,
I think, is that of an equitable solution)

“does not usually lead compellingly to any one decision in a concrete
case, but rather allows a wide range for variable judgment in interpre-
tation and application, approaching compulsion only at the limits of
the range” (Julius Stone, Legal System and Lawyers’ Reasonings,
1964, p. 264).

In some circumstances, equity can be satisfied in different ways. Cer-
tainly, an equitable solution in a given situation may result just as well
from the use of one method as from the use of another. In the words of
Paul Jean-Marie Reuter:

“Si pour reprendre le dictum de la Cour internationale de Justice
dans l’affaire du Plateau continental de la mer du Nord (par. 93) ‘iln’y
a pas de limites juridiques aux considérations que les Etats peuvent
examiner afin de s’assurer qu’ils vont appliquer des procédés équi-
tables’, il n’y en a pas non plus aux combinaisons techniques que
l’on peut mettre en œuvre pour réaliser une délimitation équitable.”

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(Paul Jean-Marie Reuter, “Une ligne unique de délimitation des
espaces maritimes?”, in Mélanges Georges Perrin, 1984, p. 265.
And see, ibid., p. 266.)

Thus an equitable delimitation could be produced by recourse to different
technical methods or combinations of methods. More to the point, the
circumstances of some cases may conceivably admit of more than one
equitable line (see Sir Robert Jennings, “The Principles Governing
Marine Boundaries”, op. cit., p. 402). The median line may well be just as
equitable as some other line. It is not in such a case that the median line is
excluded; it is excluded only where the special circumstances justify some
other boundary in the sense of demonstrating that the median line would
in those particular circumstances be productive of injustice, as indeed is
evident from the travaux préparatoires of the International Law Commis-
sion and the 1958 Geneva Conference. On the other hand, a particular
non-equidistance line is “justified” (not “appropriate”) only if in the cir-
cumstances of the case justice can be done only by that line and not by an
equidistance line. In the absence of such circumstances, the median line is
the boundary.

An obvious problem is of course that the provision neither defines “spe-
cial circumstances” nor lays down any criteria for identifying what is the
“boundary line” which “is justified by” particular special circumstances.
This being so, the scope of the concept of “special circumstances” and its
precise relationship with the rule relating to equidistance must be sought
in some higher criterion implicit in the provision as controlling the rela-
tionship between its two parts. Why? Because, to turn for the last time to
the argument of Professor Jaenicke:

“If a legal provision such as Article 6, paragraph 2, contains a rule
and at the same time provides for an exception to this rule under the
general notion of special circumstances, there must necessarily be
some higher standard for judging whether the rule or the exception
applies.” (.C.J. Pleadings, North Sea Continental Shelf, Vol. II,
p. 178.)

In the case of Article 6, it is reasonable to locate the co-ordinating higher
standard in equitable principles as understood in international law.

This approach rejoins the generally accepted view that equity is the
overall controlling factor, both for the use of the equidistance method and
for the use of some other possible method. But there is this difference, that
some sense is sought to be given to the specific reference to the equidis-
tance method, in so far as the use of this method is retained as obligatory in
a situation in which an equitable solution may conceivably be offered
either by the use of that method or by the use of some other (including a
modification of the equidistance method). If this margin in favour of equi-
distance is excluded, it becomes difficult to explain the need for the spe-
cific reference to that method; for, excluding that margin, the provision,

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as argued above, might have been more simply worded to say that, in the
absence of agreement, the boundary shall in all cases be that required by
equitable principles, taking account of the relevant circumstances. On this
formula, no specific method being singled out, equidistance would rank
(as received doctrine has it) equally with all other methods, the choice
among them being made in all cases by the application of equitable prin-
ciples, taking account of the relevant circumstances.

It is conceded that in practice the 1958 conventional rule and the rule of
customary international law would tend in large measure to produce simi-
lar results. But, however that may be, it does appear to me that there is a
distinction, and that it is more than one of mere nuance, between treating
equitable principles as operating to produce an equitable delimitation
through the rule and exception structure of the equidistance-special cir-
cumstances provision, and treating equitable principles as directly acting
on the relevant circumstances of each case to produce an equitable delimi-
tation.

(x) However Impromptu Might Have Been the Tabling of the Equidistance
Idea in 1953, It Was Maturely Considered Before Being Finally
Adopted in 1958

Over the years emphasis has been placed on the fact that the Interna-
tional Law Commission had before it several possible methods of delimi-
tation of the continental shelf, and on the following remark by the Court
in the North Sea cases:

“In this almost impromptu, and certainly contingent manner was
the principle of equidistance for the delimitation of continental shelf
boundaries propounded.” (1.C.J. Reports 1969, p. 35, para. 53.)

The 1953 Committee of Experts, by which the principle of equidistance
was so “propounded”, was concerned primarily with the delimitation of
the territorial sea. It stated that equidistance was equally applicable to the
delimitation of the continental shelf. According to the International Law
Commission’s Special Rapporteur, Professor Francois, the Committee of
Experts, in so stating, “had confirmed the Commission’s preliminary view
that the technique of the median line could be adopted for States whose
coasts faced each other . . .” (Yearbook of the International Law Commis-
sion, 1953, Vol. I, p. 106, para. 39). So, from the beginning the Interna-
tional Law Commission was involved in the thinking concerning the
applicability of equidistance to the delimitation of the continental shelf, at
least as between opposite coasts. In paragraph 162 of his Second Report
on the High Seas of 10 April 1951, Professor François had himself sub-
mitted to the Commission nine draft articles on the continental shelf as a
basis of discussion. Draft Article 9 read:

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“Si deux ou plusieurs Etats sont intéressés au même plateau con-
tinental en dehors des eaux territoriales, les limites de la partie du
plateau de chacun d’eux seront fixées de commun accord entre les
Parties. Faute d’accord, la démarcation entre les plateaux continen-
taux de deux Etats voisins sera constituée par la prolongation de la
ligne séparant les eaux territoriales, et la démarcation entre les
plateaux continentaux de deux Etats séparés par la mer sera consti-
tuée par la ligne médiane entre les deux côtes.” (Yearbook of the
International Law Commission, 1951, Vol. II, p. 102.)

A footnote to this provision added:

“Comme ligne de démarcation entre le plateau continental com-
mun a deux Etats séparés par la mer, on pourrait adopter, par ana-
logie à la ligne de démarcation entre les eaux territoriales dans les
détroits, la ligne médiane entre les deux côtes. Le cas échéant, les
Etats intéressés pourraient, d’un commun accord, délimiter les pla-
teaux continentaux d’une manière différente.” (/bid., p. 103. And see
the discussion in ibid., Vol. I, pp. 285-287, 411.)

Thus the idea of the median line was being considered as early as 1951.

The discussions on the subject in the Commission in 1953, after the sub-
mission of the recommendations of the Committee of Experts, were
adjourned for five days for the purpose of allowing time for consideration
(Yearbook of the International Law Commission, 1953, Vol. I, pp. 108 and
125). It was only after further discussions that the text was adopted (ibid.,
p. 134, para. 51. For the text, see ibid., Vol. II, p. 213). Not a long period of
adjournment, it may be said. But then, three years later, the text was again
discussed in the Commission (Yearbook of the International Law Commis-
sion, 1956, Vol. I, pp. 151-153, 277).

Besides, it could not be said that the adoption of the substance of the
International Law Commission’s text at the Geneva Conference in 1958,
following on a debate at the eleventh session of the United Nations Gen-
eral Assembly !, was the result of an impromptu response by the Confer-
ence to a new text suddenly presented: it seems clear that the text was the
subject of careful study by well-prepared jurists in 1958 and that opportu-
nity had been given to Governments to be consulted in preceding inter-
vals. “The scale and thoroughness of this process” was rightly noticed by
Vice-President Koretsky (North Sea, I.C.J. Reports 1969, p. 156, dissenting
opinion. And see I.C.J. Pleadings, Delimitation of the Maritime Boundary
in the Gulf of Maine Area, Vol. II, pp. 78-79, paras. 203-204; and Official

1 Official Records of the General Assembly, Eleventh Session, Plenary Meetings, Vol. IX,
658th meeting, 21 February 1957, pp. 1181 ff.

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Records of the United Nations Conference on the Law of the Sea, Vol. VI,
Fourth Committee, Geneva, 24 February-27 April 1958, pp. 9 ff., passim,
and 91-98). The need for flexibility in the working of the provision was
recognized and, indeed, emphasized (Official Records of the United
Nations Conference on the Law of the Sea, Vol. VI, op. cit., p. 22, para. 35,
Tunisia); but nothing said suggests that the equidistance method was not
intended to play the ultimate concrete normative role ex facie assigned to
it by the terms of the provision.

The triad — agreement, equidistance, special circumstances —
appeared in the draft adopted by the International Law Commission on
30 June 1953. They remained on the table until they emerged in the final
text in 1958. Textual alterations were made in the interval, but suggestions
that these profoundly affected the essential original relationship of the
three elements of the triad are not borne out (cf. Contre-mémoire présenté
par le Gouvernement de la République frangaise, in the Anglo/French
Arbitration, July 1976, Vol. 1, p. 49, para. 125).

Whatever might have been the circumstances in which the equidistance
proposal came before the Commission in 1953, there was nothing rushed
in the consideration which it received from then on until its final adoption
five years later in 1958. To assume the opposite is to invite the supposition
that, had the framers of the provision acted with greater deliberation, they
would have employed materially different language. This sort of reflec-
tion, if engaged in by a court, imports a risk of its taking a corresponding
view that its task is to give effect not to the language used, but to language
which, in the court’s opinion, should have been used in order to express an
idea which the framers of the provision did not in fact have in mind, but
which the court thinks they would have had in mind had they acted with
greater deliberation. It is scarcely necessary to say that this is not an
admissible method of interpretation (see Judge Lachs’s comment in the
North Sea cases, I.C.J. Reports 1969, pp. 221-222).

(xi) Scholarly Opinion

I shall add a brief reference to scholarly opinion. Without attempting a
survey, I have the impression that many writers would share the view
expressed by Professor Bowett, when, but for decisional authority, he
considered that the correct situation was as follows:

“The legislative history of Article 6 suggests that ‘special circum-
stances’ operate as an exception to the general rule and not as an
independent principle of equal validity. As the I.L.C. stated:

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‘,.. the rule of equidistance is the general rule, it is subject to
modification in cases in which another boundary line is justified
by special circumstances’.

Indeed, one might have thought that it could scarcely be otherwise,
for if ‘special circumstances’ stood on an equal footing with the
median/equidistance line rule, there would in effect be no rule to fall
back on in the event of disagreement, and this the parties to the
1958 Convention clearly did not intend. On this view it would have
followed from this relationship of rule to exception that the rule
applies unless a party can discharge the dual onus of proving

(a) that ‘special circumstances’ exist, within the meaning of Article 6,
and

(b) that these ‘justify’ another boundary.” (Derek Bowett, The Legal
Regime of Islands in International Law, 1979, pp. 149-150. Foot-
note omitted.)

There is no question here of what Henri Rolin referred to, deprecatingly,
as “l’attrait de cette entreprise” of contradicting an advocate with his
academic writings (1.C.J. Pleadings, Right of Passage over Indian Territory,
Vol. V, p. 187). For Professor Bowett did also state that

“it cannot now be argued (if the Court [of Arbitration] is right) that
equidistance applies unless a party can show that there exist special
circumstances of rather limited character” (Bowett, op. cit., p. 151).

The matter of importance in this Court is his caveat, “if the Court [of Arbi-
tration] is right”. Was it? I am not persuaded that it was.

(xii) Conclusion

Equidistance per se is certainly a geometric method and not a legal
principle; but in the collocation in which it occurs, in the form of the
median line, in Article 6, paragraph 1, of the 1958 Convention, it un-
doubtedly forms part of a rule of law to the effect that, subject to two
conditions, namely, the absence of agreement and the non-existence of
special circumstances, the boundary is the median line. To say that equi-
distance is applicable only where equitable principles as applied to the
relevant circumstances indicate it as the most suitable method among
other possible methods for achieving an equitable delimitation is to im-
pose a condition for its application in addition to the two which have
in fact been prescribed by the provision itself. “To impose an addi-
tional condition . . . would be equivalent, not to interpreting the [Con-
vention], but to reconstructing it.” (Acquisition of Polish Nationality,
P.CIJ., Series B, No. 7, p. 20. And see Judge Read, dissenting, in the

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Interpretation of Peace Treaties case, I.C.J. Reports 1950, p. 246.) However
widely the exception relating to special circumstances may be construed,
it cannot be read so as to decapitate the clear intendment of the rule that,
when the two prescribed conditions are satisfied, the equidistance
method automatically and compulsorily applies to define the boundary.

A certain view has imposed itself to shift the equidistance method from
the position of distinctiveness plainly assigned to it within the framework
of the 1958 provision to a position described by Judge Evensen as one of
“relegation ... to the last rank of practical methods” (Tunisia/Libya, I.C.J.
Reports 1982, p. 297). To Judge ad hoc Valticos, the method has often
seemed “la ‘mal-aimée’” among delimitation methods (Libya/ Malta,
CJ. Reports 1985, p. 106, para. 7). So lowly a position is not justified by
the language of the provision. Looking at that language, one might think
naturally of Vattel’s aphorism, “The first general maxim of interpretation
is that it is not permissible to interpret that which does not need interpreta-
tion.”! If the idea behind that maxim has not always been hospitably
received, I would yet borrow the words of Judge Winiarski and conclude
that “[nJo effort of interpretation could make these clear provisions say
what they do not say” (The Application of the Convention of 1902 Governing
the Guardianship of Infants, I.C.J. Reports 1958, p. 133, dissenting
opinion).

Towards the end of his distinguished judicial career, Judge Anzilotti
remarked,

“[In this case, the Court is not confronted with a rule of common
international law; it is dealing with a specific and formal provision,
Article 3 of the Treaty, which it is required to apply.” (Electricity Com-
pany of Sofia and Bulgaria, P.C.I.J., Series A/B, No. 77, p. 98, dissent-
ing opinion.)

The context was different, but not so different as to exclude the approach.
It would serve no useful purpose to purport to be applying the delimita-
tion provision of the 1958 Convention while straining to equate it with
the position at general international law. Such an equation would be
artificial. Affirmations to the contrary are impressive, but not con-
vincing. In the end, it may not make much practical difference whether
there is an equation if, as I think, there are special circumstances within
the meaning of the provision. But, at this stage, the question whether
there is such an equation does present itself; and the answer I would

! E. de Vattel, Le droit des gens, Vol. 2, Chap. 17, para. 263, cited by Mr. Basdevant in
the S.S. “Wimbledon”, P.C.I.J., Series C, No. 3, Vol. I, p. 197.

2 See Interpretation of the Convention of 1919 concerning Employment of Women
during the Night, P.C.LJ., Series A/B, No. 50, p. 383, Judge Anzilotti, dissenting.

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give is to uphold the submission of Norway to the effect that, absent
both agreement and special circumstances, “the boundary is the median
line”. |

PART IL. PROPORTIONALITY

The question now is whether the will of the Parties, as expressed in Ar-
ticle 6, paragraph 1, of the 1958 Convention, truly calls for a median line. It
can only do so if there are no special circumstances which justify another
boundary. Are there any such circumstances? Denmark contends that the
disparity in the lengths of the two opposite coasts is such a circumstance.
Norway submits that it is not. If Denmark is right, the further question will
arise as to what is the boundary which such special circumstances
justify. It seems to me that the answers to both questions will turn largely
on the issue of proportionality. To this general issue, the subject of debate,
I now turn.

(i) The Broad Evolutionary Perspective

It would be useful to begin by adverting to some aspects of the broad
perspective within which the jurisprudence has been unfolding.

First, the law in this field being in a state of evolution, the danger of
over-conceptualization has been rightly pointed out (North Sea, I.C_J.
Reports 1969, p. 53, para. 100; and Tunisia/Libya, I C.J. Reports 1982,
p. 92, para. 132). Not surprisingly, the language in the case-law is not
always clear or consistent. It is possible to discern at some stages in the
movement of the jurisprudence a shifting discrepancy between recital of
known but possibly obsolescent legal propositions and the controlling
principle to be extracted from the decision actually made (Libya/Malta,
LCJ. Reports 1985, p. 90, para. 37, joint separate opinion of Judges Ruda,
Bedjaoui and Jiménez de Aréchaga). The understandable reason for the
jurisprudential haze is that, in its effort to reconcile stability with change,
the Court accepts change, while tending to retain an attachment to
articulations which the change has really left behind. For here too, as
Keynes said, “the difficulty lies not in the new ideas, but in escaping from
the old ones” (cited in Earl Warren, “Toward a More Active International
Court”, Virginia Journal of International Law, 1971, Vol. 11, p. 295).

Second, there seems to be a danger of overlooking the effect of a delimi-
tation line in settling the question of the extent of the continental shelf to
which the litigating parties are entitled in relation to each other. Almost
certainly, this above all is what the parties really wish to know; it is the
delimitation line which gives them the answer. As observed in the joint
separate opinion in the Libya/ Malta case, “the Court is establishing a line

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which will determine the areas which ‘appertain’ to each of the Parties”
(.C_J, Reports 1985, p. 92, para. 40). This effect of a delimitation decision
in determining what are the areas appertaining to each of the parties is apt
to be obscured by the tendency of the jurisprudence to dwell on the prin-
ciple that the continental shelf appertains to a coastal State ipso jure, and
that, accordingly, the object of a delimitation is not to apportion the con-
tinental shelf (considered as an undivided common pool) in separate
shares among the interested coastal States, but simply to determine what is
the line separating areas of the shelf which already appertain to each of
them individually (North Sea, I.C.J. Reports 1969, p. 22, para. 20; and see
p. 188, Judge Tanaka, dissenting, and p. 199, Judge Morelli, dissenting).

But, in the words of Judge Mbaye, “it is not feasible artificially to sepa-
rate the right to an area of continental shelf from the rules for delimiting
[the] shelf” (Libya/Malta, I.C.J. Reports 1985, p. 96, separate opinion).
True, the questions of entitlement and delimitation are “distinct”. But, as
the Court remarked, that they “are also complementary is self-evident.
The legal basis of that which is to be delimited, and of entitlement to it,
cannot be other than pertinent to that delimitation.” (Ibid., p. 30, para. 27.
And see ibid., pp. 33-34, para. 34.) If the necessary jurisdiction exists,
there would be nothing to prevent a State from seeking a declaration of its
entitlement, were this to be challenged by another State. The occasion may
not often arise, but it could, as where there is a dispute as to whether the
territory in question is for any reason incapable of generating a continen-
tal shelf of its own. A dispute of that kind was presented in the Aegean Sea
Continental Shelf case, in which Turkey took the position that “the Greek
Islands situated very close to the Turkish coast do not possess a [continen-
tal] shelf of their own” (J.C_J. Reports 1978, p. 8, para. 16); and naturally
the Application by Greece did include a claim for a declaration of entitle-
ment (ibid., p. 6, para. 12, item (i) of Greece’s Application). More usually,
however, what a coastal State may wish to ascertain is what is the precise
extent of its entitlement in relation to an adjacent or opposite State; it is a
decision as to delimitation which settles the point.

Thus, the theory of the law (correct in itself) that separate continental
shelf areas already appertain to each coastal State should not be allowed
to foster the illusion that the determination of a delimitation line is not
uno flatu an effective declaration of the actual extent of the area to which
each State is entitled vis-a-vis the other. The Court in 1969 did not make
this mistake. It accepted that a delimitation line does define areas of
entitlement when it said:

“Evidently any dispute about boundaries must involve that there is
a disputed marginal or fringe area, to which both parties are laying

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claim, so that any delimitation of it which does not leave it wholly to
one of the parties will in practice divide it between them in certain
shares, or operate as if such a division had been made.” (1.CJ.
Reports 1969, p. 22, para. 20.)

It is true, as the Court observed, that under Article 2 of the 1958 Conven-
tion the coastal State’s rights in the continental shelf are “exclusive”, but,
as it added,

“this says nothing as to what in fact are the precise areas in respect of
which each coastal State possesses these exclusive rights. This ques-
tion, which can arise only as regards the fringes of a coastal State’s
shelf area is, as explained at the end of paragraph 20 above, exactly
what falls to be settled through the process of delimitation, and this is
the sphere of Article 6, not Article 2.” (Ibid., p. 40, para. 67.)

Of course it is the case that the question “can arise only as regards the
fringes of a coastal State’s shelf area”. It is nonetheless true that, whenever
such a question arises, it is the delimitation line which provides the answer
“as to what in fact are the precise areas in respect of which each coastal
State possesses these exclusive rights”; and that answer could make a sub-
stantial difference in terms of relative magnitudes.

In the North Sea cases the Court understood very well that the whole of
the cases was really about the extent of the continental shelf areas claimed
by each State in relation to each other. It repeated the substance of that
understanding in 1978 when it said, “Any disputed delimitation of a bound-
ary entails some determination of entitlement to the areas to be deli-
mited” (Aegean Sea Continental Shelf, I.C.J. Reports 1978, p. 35, para. 84).
Even in respect of terrestrial questions, it is inappropriate to insist on too
rigid a distinction between attribution of title and delimitation (Frontier
Dispute, I.C_J. Reports 1986, p. 563, para. 17).

It follows that failure to consider the effect which a proposed delimita-
tion will have on the definition of the area of the continental shelf apper-
taining to each State may be to miss the real point of the litigation.

Third, it is necessary to bear in mind that, to the extent that the funda-
mental principle of natural prolongation has been displaced within the
conceptual framework of the continental shelf, the restraints which it pre-
viously imposed on recourse to the factor of a reasonable degree of pro-
portionality would fall to be now regarded as correspondingly relaxed.
This point is developed in Section (ii) below.

(ii) Proportionality and Natural Prolongation
Much of the received jurisprudence on the question of proportionality
was influenced by what the Court in 1969 referred to as the “fundamental
concept of the continental shelf as being the natural prolongation of the

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land domain” (North Sea, I.C.J. Reports 1969, p. 30, para. 40). It is submit-
ted that it was natural prolongation, considered in a physical sense, which
was chiefly (though not wholly) responsible for the restraints imposed on
proportionality. So it is necessary to consider how far natural prolonga-
tion was understood in a physical sense, in what way it operated in that
sense to impose such restraints, and to what extent, if any, those restraints
should now be regarded as having been diminished by the attrition of that
aspect of the concept which operated in large part to impose them.

First then, as to the sense in which natural prolongation was under-
stood. It is true that even in 1956 the International Law Commission had
“decided not to adhere strictly to the geological concept of the continental
shelf” (Yearbook of the International Law Commission, 1956, Vol. II, p. 297,
subpara. 6. And see the general discussion, ibid., 1956, Vol. I, pp. 130 ff.).
But the material before the Commission shows that even scientists dif-
fered in their use of the term “continental shelf” (ibid., 1956, Vol. II, p. 297,
subpara. 5). Consequently, I do not wish to argue whether the Court was
right in 1969 in understanding the concept in a physical sense. I am con-
cerned only with the question whether the concept was in fact so under-
stood by the Court, and, if so, with what consequences, if any, for the
concept of proportionality as enunciated by it.

It has, of course, been long recognized that the “natural prolongation of
the land domain” does not always assume a geomorphological character
specifically identified with the extension of any given coastline. As the
Court noted in 1982:

“at a very early stage in the development of the continental shelf as a
concept of law, it acquired a more extensive connotation, so as event-
ually to embrace any sea-bed area possessing a particular relation-
ship with the coastline of a neighbouring State, whether or not such
area presented the specific characteristics which a geographer would
recognize as those of what he would classify as ‘continental shelf”
(Tunisia/Libya, I.C.J. Reports 1982, p. 45, para. 41. And see ibid.
pp. 45-46, paras. 42-43.)

It is for these reasons that the Court added:

“Tt would be a mistake to suppose that it will in all cases, or even in
the majority of them, be possible or appropriate to establish that the
natural prolongation of one State extends, in relation to the natural
prolongation of another State, just so far and no farther, so that the
two prolongations meet along an easily defined line.” (Jbid., p. 47,
para. 44. And see, generally, Judge ad hoc Jiménez de Aréchaga,
separate opinion, pp. 110-113, 116-120.)

But it would not be right to take these views too far back in time. The
North Sea delimitations relating to the Norwegian Trough are sometimes
cited as supportive of the opinion that even in 1969 the Court accepted

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that natural prolongation was not always physical. That view is plausible.
But the interpretation of the Court’s Judgment on the point which I prefer
is that, apart from expressly stating that it was not “attempting to pro-
nounce on the status of that feature”, the Court considered that the delimi-
tations were explicable by reason of the decision of the Parties to ignore
the existence of the Trough. In its words, “it was only by first ignoring the
existence of the Trough that these median lines fell to be drawn at all”
(LCJ. Reports 1969, p. 32, para. 45). Had the Parties not agreed to ignore
the existence of the Trough, different consequences might well have
ensued from the fact that, as the Court found,

“the shelf areas . . . separated from the Norwegian coast by . . . the
Trough cannot in any physical sense be said to be adjacent to it, nor
to be its natural prolongation” (ibid. ).

Presenting its idea of natural prolongation, what the Court said in 1969
was this:

“The institution of the continental shelf has arisen out of the recog-
nition of a physical fact; and the link between this fact and the law,
without which that institution would never have existed, remains an
important element for the application of its legal régime. The conti-
nental shelf is, by definition, an area physically extending the terri-
tory of most coastal States into a species of platform which has
attracted the attention first of geographers and hydrographers and
then of jurists. The importance of the geological aspect is empha-
sized by the care which, at the beginning of its investigation, the Inter-
national Law Commission took to acquire exact information as to its
characteristics, as can be seen in particular from the definitions to be
found on page 131 of Volume I of the Yearbook of the International
Law Commission for 1956. The appurtenance of the shelf to the coun-
tries in front of whose coastlines it lies, is therefore a fact, and it can
be useful to consider the geology of that shelf in order to find out
whether the direction taken by certain configurational features
should influence delimitation because, in certain localities, they
point-up the whole notion of the appurtenance of the continental
shelf to the State whose territory it does in fact prolong.” (North Sea,
LCJ. Reports 1969, p. 51, para. 95; and see ibid., p. 31, para. 43.)

For the Court, natural prolongation was the “fundamental concept of the
continental shelf”. It went out ofits way to explain that what it had in mind
was natural prolongation in a palpably physical sense. It offered no other
version of the concept. The concept being “fundamental”, it might be sup-
posed that, if the Court had in mind the possibility of some other kind of
natural prolongation, it would have mentioned it, and mentioned it the
more explicitly the more esoteric it was. It did not. With some diligence, it

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is possible to qualify this view by recourse to fragmentary remarks and
tangential phrases dropped here and there in the Judgment. But one can-
not now rewrite the Judgment in the hindsight of later jurisprudence or of
more sophisticated ideas developed in relation to the Law of the Sea Con-
vention 1982. Incidental expressions in the Judgment do not blunt its hard
thrust. That thrust was clear: when the Court spoke of “natural prolonga-
tion” it meant just that — a prolongation which was “natural”, and not
one which was philosophical, theoretical or notional. It is not necessary,
however, to take an absolute position; it suffices for present purposes to
say that the working view which the Court took was that natural prolonga-
tion was physical in character.

Now for the second point, as to the way in which natural prolongation
in the physical sense operated to impose restraints on recourse to the con-
cept of proportionality.

Natural prolongation was considered as relevant to title. But, as
recalled above, title and delimitation are interlinked. One can scarcely fail
to see this connection at work in the very first principle or rule of interna-
tional law enunciated by the Court in 1969 as being “applicable to...
delimitation”, when it spoke of account having to be taken

“of all the relevant circumstances, in such a way as to leave as much
as possible to each Party of all those parts of the continental shelf that
constitute a natural prolongation of its land territory into and under
the sea, without encroachment on the natural prolongation of the
land territory of the other” (1.C.J. Reports 1969, p. 53, para. 101 (C) (1).
And see ibid., p. 47, para. 85 (c).)

As the Chamber observed in 1984, a delimitation is “a legal political
operation” which does not have to follow a natural boundary, where one
is discernible (Gulf of Maine, I.C.J. Reports 1984, p. 277, para. 56). But it is
nonetheless clear that the view taken by the Court in 1969 was that a major
factor differentiating one State’s continental shelf from that of its neigh-
bour, and, therefore, governing the establishment of the delimitation line,
was that of natural prolongation, dependent of course on whether the
physical circumstances permitted of separate identification (Tunisia/
Libya, I.C.J. Reports 1982, p. 46, para. 43, and p. 92, para. 133 A (2)). This
was why a submarine area lying closer to the coast of one State than to that
of another might yet appertain to the latter if it formed part of the “natural
extension” of the latter’s land territory (North Sea, I.C.J. Reports 1969,
p. 31, para. 43).

Natural prolongation in a physical sense was equally the reason why, in
the absence of any agreed solution, marginal areas of overlap had to be
divided equally between the three States concerned in the North Sea cases
(ibid., p. 50, para. 91, p. 52, para. 99, and p. 53, para. 101 (C) (2)). As I inter-
pret the Judgment, differentiation of separate prolongations being impos-

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sible within marginal areas of overlap, but the geographical situation in
the particular case being one of “quasi-equality” in which the “coastlines
[were] in fact comparable in length”, the prolongations in the areas of
overlap would fall to be deemed of equal extent, with corresponding con-
sequences for division of the areas. In other words, equal division in the
particular case would be the result of a presumed equality in natural pro-
longations. Save on the basis of some such reasoning, the direction for
equal division was at best mechanical, at worst arbitrary. As it was, it did
not escape criticism from Vice-President Koretsky, on the ground that it
transgressed the Court’s own distinction between delimitation and dis-
tribution (North Sea, [.C.J. Reports 1969, p. 168).

The direction for equal division of marginal areas of overlap left
untouched the clear implication of the Judgment that two coasts of exactly
the same length and configuration could well have continental shelves of
different areas, dependent on the extent of their respective natural prolon-
gations. Thus the physical implications of natural prolongation operated
to limit the extent to which the concept of proportionality could be
applied. But for this aspect, there would have been much to support the
view expressed by President Bustamante y Rivero that the concept of
natural prolongation

“implies, as an obvious logical necessity, a relationship of proportion-
ality between the length of the coastline of the land territory of a State
and the extent of the continental shelf appertaining to such land terri-
tory. Parallel with this, so far as concerns inter-State relations, the
conclusion is inescapable that the State which has a longer coastline
will have a more extensive shelf. This kind of proportionality is con-
sequently, in my view, another of the principles embraced by the law
of the continental shelf. The Judgment, in paragraphs 94 and 98,
mentions this element as one of the factors to be taken into considera-
tion for the delimitation of a shelf; the Court nevertheless did not
confer upon it the character of an obligatory principle.” (Ibid.
pp. 58-59, para. 4, separate opinion.)

The amplitude of that view of proportionality is attributable to its neglect
of the restraints implicit in the physical basis of the concept of natural
prolongation as this was understood by the Court.

It is useful to consider the contrasting view expressed by the Anglo-
French Court of Arbitration in a well-known passage in which it said:

“In short, it is disproportion rather than any general principle of
proportionality which is the relevant criterion or factor. The equi-
table delimitation of the continental shelf is not, as this Court has
already emphasized in paragraph 78, a question of apportioning —

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sharing out — the continental shelf amongst the States abutting upon
it. Nor is it a question of simply assigning to them areas of the shelf in
proportion to the length of their coastlines : for to do this would be to
substitute for the delimitation of boundaries a distributive appor-
tionment of shares. Furthermore, the fundamental principle that the
continental shelf appertains to a coastal State as being the natural
prolongation of its territory places definite limits on recourse to the
factor of proportionality.” (RIAA, Vol. XVIII, p. 58, para. 101.)

The Court of Arbitration is thought to have understood the concept of
proportionality somewhat more narrowly than did this Court in 1969
(cf. Libya/Malta, I.CJ. Reports 1985, pp. 72-73, Vice-President Sette-
Camara, separate opinion). The 1969 Judgment seemed innocent of the
refinement that “it is disproportion rather than any general principle of
proportionality which is the relevant criterion or factor”. It is, however,
possible to understand the dictum of the Court of Arbitration in this way.
As remarked above, natural prolongation, in its geophysical sense, could
well mean that two perfectly comparable coasts could have unequal areas
of the continental shelf. On this basis, it might well be said that “it is dis-
proportion rather than any general principle of proportionality which is
the relevant criterion or factor”. This restrictive formulation reflected the
“definite limits” which, as the Court of Arbitration found, were placed on
recourse to proportionality by the “fundamental principle that the conti-
nental shelf appertains to a coastal State as being the natural prolongation
of its territory”.

Now for the third point, concerning the extent, if any, to which the res-
traints imposed on recourse to proportionality by natural prolongation
should be regarded as having been relaxed by reason of the attenuation of
the latter concept, at least in its physical aspect.

The concept of natural prolongation is not altogether extinct; to some
extent it continues to exist even under the 1982 Convention (Tunisia/
Libya, I.C.J. Reports 1982, p. 47, para. 44, and p. 48, para. 47; and Libya/
Malta, I.CJ. Reports 1985, p. 68, Vice-President Sette-Camara, separate
opinion, and pp. 93 ff., Judge Mbaye, separate opinion). And, although
I do not propose to argue the point, its existence under the Convention
still has a physical aspect, at least in the case of the broad shelf. But, for
practical purposes (including those of delimitation), within the normal
continental shelf of 200 miles’ width, natural prolongation has now been
replaced by the geometric and more neutral principle of adjacency
measured by distance. Some hesitation notwithstanding, that change has
occurred (Tunisia/ Libya, L.C.J. Reports 1982, pp. 48-49, para. 48; and
Libya/ Malta, I.C.J. Reports 1985, pp. 35-36, paras. 39-40, p. 41, para. 49,
pp. 46-47, para. 61, and pp. 55-56, para. 77. Cf., ibid., p. 33, para. 34). The
effect of this important development needs to be more frankly addressed
than it has been.

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It is not logical to continue to think as if the “definite limits” which the
fundamental principle of natural prolongation had earlier placed “on
recourse to the factor of proportionality” still exist to the same degree now
that that principle (which was the basic source of those limits) has been
superseded in relation to the normal continental shelf by the principle of
adjacency measured by distance. This new principle, being geometric,
leaves the factor of proportionality free to operate to the same extent in all
cases, subject only to the existence of other restraining circumstances.

It seems to me that the influence on proportionality which the concept
of natural prolongation, considered in its geophysical sense, exerted in the
seminal case of 1969 continued even after greater weight began to be
placed on the purely legal aspects of the idea. It is possible, however, to see
in the evolution of the jurisprudence, culminating on this point in the
Libya/ Malta case, a growing readiness, in the case of the normal conti-
nental shelf, to come to terms with the implications of the supersession
of natural prolongation by the distance criterion and a corresponding
willingness to admit proportionality to a fuller role unrestrained by the
“definite limits” which natural prolongation had previously imposed
on recourse to it.

Even with the restraints imposed on proportionality by the fundamen-
tal concept of natural prolongation, in none of the cases dealt with by the
Court can it persuasively be said that the Court did not in one way or
another show a concern with the question whether the delimitation line
established by it would divide the maritime areas in keeping with reason-
able expectations deriving from a comparison of coastal lengths. What-
ever the methodology employed, the Court has always seemed aware of
the need to avoid a defeat of those expectations. It is not really credible to
assert that the decisive consideration in the North Sea cases was not the
fact that the three coastlines were comparable in length. The capacity, and
the duty, of the Court to satisfy such expectations need now to be re-evalu-
ated in the light of the evolution of the concept of natural prolongation.

It is not a satisfactory answer to say that proportionality could result in
one State exercising jurisdiction under the nose of another. The non-
encroachment principle, extended to the continental shelf as now under-
stood, still remains to prevent that from happening, by setting an appro-
priate limit to the extent to which proportionality can bring one State
close to another (Libya/ Malta, I.C.J. Reports 1985, p. 89, para. 34, joint
separate opinion). Nor is it enough to iterate the unchallenged proposi-
tion that proportionality is not in itself a direct principle of delimitation;
there have always been, and there still are, other considerations to be
taken into account in determining a delimitation line (ibid., p. 45, para. 58).
To divide the continental shelf in mechanical proportion to the coastal
lengths would impermissibly exclude such other considerations. Math-
ematical exactness is not the aim. This is apart from the circumstance that

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proportionality could be satisfied by different conceivable lines (Tunisia/
Libya, L.C.J. Reports 1982, p. 258, para. 162, Judge Oda, dissenting). These
various considerations continue to place their own restraints on propor-
tionality; and consequently the reference in the Libya/Malta case to “the
need to avoid in the delimitation any excessive disproportion” seems a
reasonable way of putting the matter (1.C.J. Reports 1985, p. 57). But, in
construing and applying this formulation, it would be right to take the
general view that the role of proportionality is now necessarily larger to
the extent that the “definite limits” previously imposed on recourse to it
by “the fundamental principle” of natural prolongation have been
relaxed, if not removed, with the supersession of the latter by the principle
of adjacency measured by distance.

(iii) The Question of the Normative Status of Proportionality

Counsel for Norway correctly pointed out that the factor concerning a
reasonable degree of proportionality, as between coastal lengths and con-
tinental shelf areas, was stated by the Court in 1969 as the “final” of three
“factors”, and was not included among “the principles and rules of inter-
national law” laid down by the Court in subparagraph (C) of para-
graph 101 of the Judgment. But I am less confident that it would be correct
to rely on that circumstance as justifying the attribution of a “modest”
status to that factor. The substance of the proposition concerning a rea-
sonable degree of proportionality is central to the application of “equi-
table principles” to which the Court expressly and, I should have thought,
peremptorily linked it when it spoke of “the element of a reasonable
degree of proportionality, which a delimitation carried out in accordance
with equitable principles ought to bring about” between coastal lengths
and corresponding maritime areas. Counsel for Denmark was right in
stressing the words “ought to bring about” (CR 93/2, pp. 77-78, 12 Janu-
ary 1993, Professor Jiménez de Aréchaga). Those words necessarily signi-
fied that the “element of a reasonable degree of proportionality” was
something positively enjoined by “equitable principles” themselves,
which, of course, were the governing legal principles. This being so, there
is not much purpose in considering whether it would be right to describe
the status of the proportionality factor as “modest” or as one of “subordi-
nation”, and, if so, with precisely what meanings.

If the Court did not include proportionality among “the principles and
rules of international law” set out in subparagraph (C) of the dispositif of
the North Sea Judgment, the explanation is to be found in the fact, yet
again, that the decision, in the then state of the law, proceeded on the
assumption that the fundamental principle of the continental shelf was
that of the “natural prolongation of the land domain”, understood in a

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physical sense. As has been seen, because of this principle and the way in
which it was understood, two coasts could well be of the same length and
the same configuration and yet generate different continental shelf areas
if their natural prolongations were unequal. Hence natural prolongation
could well have the effect of making it impossible to achieve a reasonable
degree of proportionality of continental shelf areas to coastal lengths; as
observed by the Anglo-French Court of Arbitration, it really operated to
impose “definite limits” on recourse to proportionality. Thus, and for a
reason which in my opinion no longer carries weight, proportionality
could not be enunciated as part of “the principles and rules of interna-
tional law”. But it did not follow from this that, as compared with other
factors, it was intended to occupy only a modest status.

I am not persuaded that an enumerative ranking is discernible from the
circumstance that proportionality was stated only as the final of three fac-
tors. The first factor was “the general configuration of the coasts of the
Parties ...”. This would obviously apply as an important factor — and not
merely as a modest one — in the process of effecting the delimitation, and
I see no sufficient reason why it should be otherwise as regards the factor
of a reasonable degree of proportionality. I should be surprised if in the
course of the subsequent negotiations the Federal Republic of Germany
was agreeable to the view that the Court’s Judgment required it to assign
so humble a role to a factor which plainly lay at the root of its discontent
(see North Sea, I.C.J. Reports 1969, p. 17, para. 7) and was, in my view, as
plainly a major link in the overall reasoning of the Court.

What was it that was preoccupying the Court in paragraph 91 of the
Judgment? I cannot read that all-important part of the Judgment without
being fixed with the clear impression that the Court was concerned to
ensure that, in “a geographical situation of quasi-equality as between a
number of States” whose “coastlines are in fact comparable in length”,
steps should be taken to correct the distorting effect of a particular coastal
configuration so as to ensure that one of the three States would not “enjoy
continental shelf rights considerably different from those of its neighbours
merely because” of that particular feature. The reference in the dispositif
to “the element of a reasonable degree of proportionality . . . between the
extent of the continental shelf areas appertaining to the coastal State and
the length of its coast ...” has to be read in the light of this driving concern
to ensure, subject to any other relevant factors, a rough measure of equal-
ity of “continental shelf rights” in relation to coastlines that were “in fact
comparable in length”. The Court’s expressed objective of ensuring that no
such State would “enjoy continental shelf rights considerably different
from those of its neighbours” could obviously not be achieved without
regard to the area of the continental shelf over which such rights would be

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exercised. This objective might of course involve, but was not limited to,
equality in respect of the seaward extent to which the continental shelf of a
State was to extend; the latter was primarily addressed by the separate
principle or rule of international law that the delimitation was to be
effected “without encroachment on the natural prolongation of the land
territory of” the other State (.CJ. Reports 1969, p. 53, para. 101 (C) (1)).
When the dispositif is thus construed, it is impossible to accept a parsing
of its terms which results in a modest status for the third factor relating to
reasonable proportionality. If this view is at variance with the position
taken by the Court in the Libya/ Malta case as to the status of the propor-
tionality factor under the 1969 decision, I respectfully differ from that
position (see Libya/ Malta, I.C.J. Reports 1985, pp. 43-45, paras. 55-57).

For the same reasons, I have difficulty with Norway’s argument that the
concept of proportionality, as enunciated by the Court in 1969, was not
one “of general application”. Naturally, the concept was stated in relation
to the circumstances of the particular case, but Iam unable to see that the
broad reasoning on which it rested was incapable of general application.
There is a noticeable want of principle to support the view that when the
Court spoke of

“the element of a reasonable degree of proportionality, which a deli-
mitation carried out in accordance with equitable principles ought to
bring about between the extent of the continental shelf areas apper-
taining to the coastal State and the length of its coast” (.C.J. Reports
1969, p. 54, para. 101 (D) (3)),

it considered that that prima facie equitable result was one which “equi-
table principles ought to bring about”, but not in all cases. It may well be that
that equitable result flows, in certain circumstances, directly from the
application of the method of delimitation chosen, without need for any
finishing adjustment; but this is an altogether different thing from saying
that the result itself is not one which “equitable principles ought to bring
about” in all cases. The result is always a valid objective, whether or not
some specific or additional step is needed to accomplish it. It follows, too,
that the fact that it is only in some circumstances that some specific or
additional step may be required to achieve that objective does not make
the objective one of modest importance.

Nor do I accept that the rationale underlying proportionality does not
extend to the case of opposite coasts (cf. L.C.J. Reports 1985, p. 135,
para. 18, Judge Oda, dissenting, and pp. 184-185, Judge Schwebel, dissent-

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ing). In the Libya/ Malta case, the Court did not think there was any such
limitation. The idea of proportionality is inevitably directed to a compari-
son of the extent to which effect should be given to competing claims to
the continental shelf. Such a competition exists just as much in the case of
claims to the continental shelf as between opposite coasts as it exists in the
case of claims to the continental shelf as between adjacent coasts.

(iv) The Question Whether Proportionality May Operate as a Factor in the
Process of Effecting a Delimitation, and Not Merely as an ex post facto Test
of the Equitableness of a Delimitation Carried Out Without Reference to It

There is a great deal of authority in favour of the view, supported by
Norway, that proportionality is only admissible as an ex post facto test of
equity and operates only to correct — usually on a relatively minor
scale — any inequities resulting from a delimitation by whatever method
produced !. It can, no doubt, serve in that way; but I am not persuaded that
it must be so confined. There is nothing in the 1969 Judgment indicative of
an intent to relegate it to service only as an ex post facto test of the equi-
tableness of a delimitation carried out without reference to it. The first and
second factors, relating respectively to the general coastal configuration
and to the physical and geological structure and natural resources, could
obviously be taken into account in the very process of effecting the delimi-
tation. It is difficult to appreciate why the position has to be different as
regards the third factor relating to proportionality.

Nor can I see that the position was different in the Tunisia/Libya case.
The reasonable proportionality factor was reproduced in paragraph 133,
subparagraph B (5), of the Judgment in terms almost identical with those
of the 1969 formulation, except that, for obvious reasons, it was now to
apply not in relation to “the length of [the] coast”, but in relation to “the
length of the relevant part of [the] coast”. Also, reflecting the structure of
the particular request to the Court, it was now stated as one of the “rele-
vant circumstances ... to be taken into account in achieving an equitable
delimitation”, and not as one of “the factors to be taken into account in the
course of the negotiations” (1.C.J. Reports 1982, p. 93, para. 133 B (5), and
LC.J. Reports 1969, p. 53, para. 101 (D) (3)). But paragraph 133 A of the
Judgment, which set out the “principles and rules of international law

! See, generally, Anglo-French Arbitration, RIAA, Vol. XVIII, pp. 57-58, paras. 98 ff.;
Tunisia/ Libya, I.C.J. Reports 1982,p.91, para. 131, pp. 92-93, para. 133, and pp. 152-153,
paras. 17 ff., Judge Gros, dissenting; Gulf of Maine, I.C.J. Reports 1984, pp. 322-323,
paras. 184-185, and pp. 334-335, para. 218; Libya/Malta, I.C.J. Reports 1985, pp. 44-46;
and Canada/France Arbitration, Award, paras. 61-63.

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applicable for the delimitation”, stated as the very first of these that “the
delimitation is to be effected in accordance with equitable principles, and
taking account of all relevant circumstances”. Thus, proportionality hav-
ing been stipulated as one of the relevant circumstances, the dispositif,
read as a whole, was effectively propounding a principle or rule of inter-
national law which itself directed that the delimitation was to be effected
in accordance with equitable principles and taking account of propor-
tionality as a relevant circumstance. I am not able to appreciate how any-
thing in this could reasonably mean that proportionality was not after all
to be taken into account in the process of effecting the delimitation, but
that it was to serve merely as an ex post facto test of the equitableness of a
delimitation which had been carried out without taking account of it. If
the delimitation was carried out without taking account of proportional-
ity, this would represent a direct breach of the direction in the dispositif
that the delimitation should be effected taking account of all relevant cir-
cumstances, proportionality being explicitly stated as one of these. It is
true that in paragraph 131 of the Judgment, the Court, referring to the
ratio between coastal lengths and continental shelf areas, said:

“This result, taking into account all the relevant circumstances,
seems to the Court to meet the requirements of the test of proportion-
ality as an aspect of equity.” (Z.C.J. Reports 1982, p. 91.)

There is a certain orthodoxy about the statement; but I do not consider it
sufficient to off-set the interpretation of principle, which the dispositif
itself bears, to the effect that the ratio between coastal lengths and conti-
nental shelf areas was to be treated not merely as an ex post facto test of the
equitableness of the result, but as a factor in the actual delimitation pro-
cess. This, at any rate, was how Judge Gros understood the Judgment
(ibid., pp. 152-153, paras. 17 ff.). I think his understanding was right, both
as to what the Court meant and as to what it in fact did.

To an extent there has always been a measure of unreality in the debate
as to whether proportionality is limited to an ex post facto role, or as to
whether it may also operate as a factor influencing the primary delimita-
tion. There is some truth in Professor Prosper Weil’s remark:

“In practice the distinction is easily blurred: once chased out
through the main door, proportionality has no difficulty in re-enter-
ing by the side doors of the disparity of coastal length and of the test
a posteriori” (CR 93/9, p. 19, 21 January 1993, translation.)

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But the true inference is not illegality, but inevitability. In the form of a
comparison of coastal lengths, proportionality made a frontal appearance
in the Libya/Malta case. There, the Court made a distinction between
using a disparity in coastal lengths as an element in the determination of
the delimitation line, and using, as an ex post facto test of the equitableness
of the result, the proportion between coastal lengths and corresponding
maritime areas, the latter being arithmetical, the former taken in the round
(CJ. Reports 1985, pp. 49 ff., pp. 52 ff.; pp. 72 ff., Vice-President Sette-
Camara, separate opinion; pp. 82 ff., joint separate opinion; and
pp. 138 ff., Judge Oda, dissenting). As I understand the case, the delimita-
tion exercise consisted of two steps, the first step being the provisional
establishment of a median line, and the second being the northward shift
of that line. Thus, the disparity in coastal lengths, which was the reason for
the northward shift, was taken into account in the very process of estab-
lishing the delimitation line. It was only after this had been done that the
Court turned to consider the question of verifying the equitableness of the
results of the delimitation so executed by reference to the ratios between
coastal lengths and corresponding maritime areas (see, generally, ibid.,
pp. 48-55, paras. 66-75). Not surprisingly, no material discrepancy was
disclosed.

And why “not surprisingly” ? Because, as a matter of common sense,
there is no purpose in taking into account a disparity in coastal lengths in
the process of effecting a delimitation unless the intention is that the dis-
parity is to be reflected in the rights of the parties as assigned to them by
the delimitation line. But now, if the question is asked what are these
rights, the answer can only be rights over the continental shelf. And here
comes the crucial question: How are these rights over the continental
shelf estimated ? Surely by reference to the areal division accomplished by
the line. It is not easy to apprehend how it is possible to affirm that a dis-
parity in coastal lengths may be taken into account in the process of deter-
mining a delimitation line, while firmly eschewing the making of any
comparison, in the course of the same process, between the extent of that
disparity and the extent of any disparity in the corresponding maritime
areas which might be produced by any proposed line. The proposition
presses sophistication to the point of disbelief.

Unless, when taking account of a disparity in coastal lengths in the pro-
cess of effecting a delimitation, one at the same time has an eye to the
ultimate effect of the operation on the extent of the maritime areas which
the delimitation will assign to each claimant, the disparity in coastal
lengths will not have been realistically taken into account when effecting
the delimitation. Conversely, as the available cases suggest, where a dis-
parity in coastal lengths has been realistically taken into account, any ex

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post facto test is unlikely to reveal anything inequitable in the result so far
as proportionality between coastal lengths and continental shelf areas is
concerned (see Tunisia/Libya, I.C.J. Reports 1982, p. 91, para. 131; and
Libya/ Malta, 1.C.J. Reports 1985, pp. 53-55, para. 75, and p. 56, para. 78).
Or, to put it another way, the very fact that in such cases the ex post facto
test revealed no material disproportionality strongly suggests that, in the
course of effecting the delimitation, account must in fact have been taken
of the possible effect of the delimitation on the ratio between coastal
lengths and maritime areas. That the ex post facto test revealed no material
disproportionality was not a miraculous coincidence; it was a logical con-
sequence of account having been realistically taken of the disparity in
coastal lengths in the process of delimitation. It may be remarked that the
dispositif in the Libya/Malta case treated “the disparity in the lengths of
the relevant coasts” on the same footing as “the need to avoid in the deli-
mitation any excessive disproportion” as between coastal lengths and
continental shelf areas, both being referred to as “circumstances and fac-
tors to be taken into account in achieving an equitable delimitation”
(L.CJ. Reports 1985, p. 57).

As mentioned above, the cases establish that proportionality as
between coastal lengths cannot be used as a method of delimitation. Were
proportionality to be used in that way, “it would”, as the Court said, “be at
once the principle of entitlement to continental shelf rights and also the
method of putting that principle into operation” (ibid., p.45, para. 58). But
the point to be emphasized is that the Court did accept it as “the principle of
entitlement”. That is important because earlier in the same Judgment the
Court said,

“Neither is there any reason why a factor which has no part to play
in the establishment of title should be taken into account as a relevant
circumstance for the purposes of delimitation.” ([bid., p.35, para. 40;
and see ibid., pp. 46-47, para. 61.)

This statement may reasonably be thought to suggest that proportionality,
being “the principle of entitlement”, is admissible as a relevant factor for
the purpose of delimitation, even if it cannot by itself serve as a method for
constructing any particular line.

In brief, it is not possible to overlook the fact that it is “the extension in
space of the sovereign powers and rights” of the State through its coastal
front which generates its entitlement to continental shelf rights (Aegean
Sea Continental Shelf, 1.C.J. Reports 1978, p. 35, para. 85, and p. 36,
para. 86; Tunisia/ Libya, I.C.J. Reports 1982, p. 61, paras. 73-74; Libya/
Malta, I.C.J. Reports 1985, pp. 40-41, paras. 47, 49, and p. 83, para. 21,
joint separate opinion); that “the coast of the territory of the State is the
decisive factor for title to submarine areas adjacent to it” (Tunisia/Libya,
ILC.J. Reports 1982, p. 61, para. 73; emphasis added); that a longer coast

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will tend to generate a greater area of continental shelf than a shorter
coast, as implied in the North Sea cases (I.CJ. Reports 1969, p. 54,
para. 101 (D) (3)); and that, consequently, where there is a lack of compar-
ability between the two coasts in question, this should in principle enter as
a factor into the very process of establishing the delimitation line with a
view to ensuring a tolerable relationship between coastal lengths and con-
tinental shelf areas.

PART III. THE Disparity IN COASTAL LENGTHS

A preliminary remark is this. On both of the proposals presented,
Jan Mayen would get a maritime area greater than what is proportionate
to its coastal length; this is so even on Denmark’s proposal. There is no
suggestion that the island’s share should be strictly limited by proportion-
ality. The question is whether the marked disparity in coastal lengths
should be altogether disregarded. Ifit is, as it would practically be on Nor-
way’s proposal, a kilometre of Jan Mayen’s coast would have six times as
great a maritime area as a kilometre of the coast of East Greenland. Would
the use of a median line which produces this result be equitable?

However odd its shape might be, a line of equidistance, if correctly
drawn, is, from a geometrical point of view, never distorted (see I.C.J.
Pleadings, North Sea Continental Shelf, Vol. II, p. 153, Mr. Jacobsen,
Agent for Denmark). Yet, in response to particular geographical features,
it could assume a configuration which might be regarded as creative of a
special circumstance disqualifying it for use as an equitable boundary
under Article 6, paragraph 1, of the 1958 Convention. Putting aside cases
in which the configuration of the median line is so affected, are there
situations in which the median line is disqualified for use by reason simply
of the proportions in which it divides the continental shelf area? In this
case, for example, would the disproportionality in areas produced by that
line be a special circumstance disqualifying it for use? Denmark would
answer in the affirmative; Norway in the negative.

In an interesting way each Party rested its case on the idea of equality,
which however was understood in these different ways:

(a) equality in the sense of equal division of overlapping areas, as men-
tioned by the Court in 1969, a division which Norway contended
would largely be accomplished by a median line, with any inequality
being in favour of Denmark;

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(b) equality in the sense in which a median line effects an equal division
of the distance between opposite coasts; and

(ce) equality in the sense of comparing like with like, with the conse-
quence that to treat coasts of unequal length as if they were of equal
length would be to treat them unequally.

Norway contended for (a) and (b); Denmark contended for (c). They
are dealt with respectively in Sections (i), (ii) and (iii) below. Inevitably,
the treatment is not neatly compartmentalized, and permeating the whole
is the question of proportionality considered in Part II. It may be added
that, in general, Norway tended to de-emphasize proportionality and to
stress equal division, while Denmark tended to stress proportionality and
to de-emphasize equal division.

(i) Norway’s Claim Considered on the Basis of the Case-Law concerning
Equal Division of Overlapping Areas

I begin with the first of the two senses in which Norway rested its claim
to a median line on the idea of equality. This is the sense in which the
case-law speaks of equal division of overlapping areas.

I understood Norway to be contending that what has to be delimited is
not the whole of the continental shelf lying between the two opposite
coasts, but only the smaller part within this wider area which is enclosed
by the two overlapping 200-mile lines projected from each coast; that the
principle established by the case-law is that this area of overlap should
be divided equally; and that, although the median line would tend to
favour Greenland somewhat even within the area of overlap, yet, from a
practical point of view, it would effect a fairly equal division of this area
(Counter-Memorial, Vol. I, pp. 124-126, paras. 421-424; pp. 147-148,
paras. 498-502; and Rejoinder, pp. 170 ff.).

There are two questions which I propose to examine. First, is the pre-
mise of Norway’s position correct, in so far as it seems to be asserting that
what is being delimited is not the entire continental shelf lying between the
two opposite coasts, but only the smaller area of overlap lying in the
middle of the larger area? Second, in so far as the case-law speaks of the
area of overlap being divided by the median line equally, does it contem-
plate all conceivable cases regardless of disparities in coastal lengths,
or only cases in which the coastal lengths are comparable?

As to the first question, naturally the delimitation line would not lie
outside the area of overlap. But, once constructed, what the line delimits is
not the area of overlap, but the continental shelf lying between the two

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opposite coasts. This must be so because what Article 6, paragraph 1, of
the 1958 Convention speaks of is “the boundary of the continental shelf
appertaining to [opposite] States” — words which I would construe to
refer to a boundary relating to the entire continental shelf lying between
the opposite coasts. Likewise, paragraph 3 of the provision speaks of
“delimiting the boundaries of the continental shelf”.

Even if it is only the area of overlap which is being delimited, the delimi-
tation must take account of the factor of a reasonable degree of propor-
tionality, and this in turn takes account of the ultimate effect of the
delimitation line on the position of the parties within the whole of the con-
tinental shelf areas appertaining to them (North Sea, I.C.J. Reports 1969,
p. 54, para. 101 (D) (3), and Libya/Malta, I.C.J. Reports 1985, pp. 54-55,
para. 75). That factor will obviously have to be taken into account in rela-
tion to the whole of the continental shelf in a case in which, the distance
between the coasts being less than 200 miles, the whole of the shelf is
within the area of overlap. I cannot see that it can apply any the less to the
whole of the continental shelf where, as in this case, the distance is greater
than 200 miles.

Thus, it cannot, in my view, be right to proceed on a premise which
suggests that the equitableness of a delimitation line is not affected by the
repercussions of the line on the continental shelf outside the inner area of
overlap within which the line is constructed.

Now to the second question, as to whether the case-law on equal
division contemplated all conceivable cases regardless of disparities in
coastal lengths.

The arguments reached back to two ways in which the 1969 Judgment
dealt with the matter. The passage which was emphasized by Norway was
the following:

“The continental shelf area off, and dividing, opposite States, can
be claimed by each of them to be a natural prolongation of its terri-
tory. These prolongations meet and overlap, and can therefore only
be delimited by means of a median line; and, ignoring the presence of
islets, rocks and minor coastal projections, the disproportionally dis-
torting effect of which can be eliminated by other means, such a line
must effect an equal division of the particular area involved.” (CJ.
Reports 1969, p. 36, para. 57.)

The passage which was stressed by Denmark was this:

“In a sea with the particular configuration of the North Sea, and in
view of the particular geographical situation of the Parties’ coastlines
upon that sea, the methods chosen by them for the purpose of fixing
the delimitation of their respective areas may happen in certain local-
ities to lead to an overlapping of the areas appertaining to them. The
Court considers that such a situation must be accepted as a given fact

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and resolved either by an agreed, or failing that by an equal division
of the overlapping areas, or by agreements for joint exploitation, the
latter solution appearing particularly appropriate when it is a ques-
tion of preserving the unity of a deposit.” (LC.J. Reports 1969, p. 52,
para. 99. And see ibid., p. 53, para. 101 (C) (2).)

Relying on this passage, and on the associated elements of the dispositif,
Denmark concluded that:

“the asserted principle of equal division supposed to be derived from
that case was to apply only in those marginal areas of overlap, not in
the delimitation as a whole” (Reply, Vol. I, p. 153, para. 416).

Both of the two passages from the 1969 Judgment speak of equal divi-
sion. But there is one element in the first passage which is absent from the
second, namely, a reference to the use of the median line in a delimitation
between opposite States. The second passage prescribed the objective
(barring agreement) of equal division of marginal areas of overlap, but
stipulated no particular method of delimitation for achieving it; equal
division does not necessarily imply the use of the median line. In view of
this difference, I am not able to accept Denmark’s submission that the
idea of equal division, as referred to in the first passage, is restricted to the
case of marginal areas of overlap dealt with in the second.

But the question remains whether the idea of equal division applies to
every delimitation as between opposite States regardless of disparities
in coastal lengths. Here it is worth bearing in mind that a court in
making a statement cannot always visualize all the varied circumstances
to which it may later be sought to apply the statement. Is it really clear
that, in speaking in 1969 of equal division by a median line of the
continental shelf between “opposite States”, this Court visualized ali con-
ceivable cases, however peculiar, in which one State may be said to be
“opposite” to another? What was the picture in its mind when it spoke
of “opposite States” ? The thing furthest from the mind of the Court was
a situation in which a small island and a long mainland coast were
confronting each other as the primary components of the relevant geo-
graphical area. The sense in which the Court considered the position
of islands was that in which “islets, rocks and minor coastal projec-
tions” might operate to distort a median line (CJ. Reports 1969,
p. 36, para. 57). With the view which the Court then took of natural
prolongation as being physical in character, it is doubtful that it would
have entertained the idea of the natural prolongation of a small island
coast realistically meeting and overlapping with the whole of the
natural prolongation of a mainland coast nine times as long, in the prac-
tical sense in which the natural prolongations of two comparable and
opposite coasts would. It is even less likely that the Court would have

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taken that view where the distance between the coasts was as great as it
is in this case.

Referring to the Court’s 1969 dictum on the principle of equal division
by a median line, counsel for Norway cited the following comment in the
ninth edition of Oppenheim’s International Law (Vol. 1, p. 779, fn. 10):

“But of course, except in the unlikely case of exactly correspond-
ing coastlines, a median line never does effect an equal division of
areas, nor does it seek to do so.” (CR 93/7, p. 51, 19 January 1993,
Professor Brownlie.)

One readily agrees. The point had in substance been made to the Court in
the course of the oral arguments concerning Judge Sir Gerald Fitz-
maurice’s third question. In his answer, Sir Humphrey Waldock expressly
stated “that even median lines by no means guarantee an equal division of
areas whether in a narrow or more extensive continental shelf” (1.CJ.
Pleadings, North Sea Continental Shelf, Vol. II, p. 275. And see ibid.,
pp. 163 and 248 ff.). It would not be right to suppose that the Court over-
looked the point; nor had it been given any good reason to disagree with it.
So the question which arises is this. When the Court said that a median
line “must” divide areas equally, did the Court fall into error, regard being
had to the fact that a median line does not always do that? Or, would the
more reasonable interpretation be to read the Court’s reference to equal
division by a median line as contemplating cases in which two States were
“opposite States” in the sense of having coastlines which were compar-
able and which could in consequence lead to equal division by a median
line, at any rate with the non-mathematical roughness tolerable in mari-
time delimitation? Recognizing that some circularity of argument is not
altogether absent, I would nevertheless elect for the second view and con-
clude that, when the Court said that a median line “must effect an equal
division”, it could not have intended to include situations in which a
median line could not possibly achieve that result, such as the instant case
in which one coast is nine times as long as the other. In my opinion, there is
no compelling basis for suggesting that the Court’s reference to a median
line as effecting an equal division was intended to apply in all conceivable
situations in which prolongations overlapped; manifestly a median line
could not always do that, and the Court might reasonably be credited with
knowing this.

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Counsel for Norway cited certain other decisions which referred to
paragraph 57 of the Court’s 1969 Judgment, or to the principle it enun-
ciated, namely, the cases of the Gulf of Maine, Libya/Malta and the
Anglo-French Arbitration. These do not really take the matter further.

In referring to the question of equal division by a median line, the
Chamber in 1984 expressly incorporated an important caveat when it
said —

“it is inevitable that the Chamber’s basic choice should favour a
criterion long held to be as equitable as it is simple, namely that in
principle, while having regard to the special circumstances of the case,
one should aim at an equal division of areas where the maritime pro-
jections of the coasts of the States between which delimitation is to be
effected converge and overlap.” (Gulf of Maine, I.C.J. Reports 1984,
p. 327, para. 195; emphasis added.)

In that case, in which the disparity in coastal lengths in the second seg-
ment was much less than it is here (the ratio there being 1.38 to 1 as against
9.2 to 1 in this case), the median line was appropriately adjusted. Several
references by the Chamber (cited by Counsel for Norway) to the idea of
equal division do show the importance the Chamber attached to the idea;
they do not show that the Chamber considered that any and every area of
overlap was always to be divided equally, whether by a median line or
otherwise!. On the contrary, the Chamber said:

“The applicability of this method is, however, subject to the condi-
tion that there are no special circumstances in the case which would
make that criterion inequitable, by showing such division to be
unreasonable and so entailing recourse to a different method or
methods, or, at the very least, appropriate correction of the effect pro-
duced by the application of the first method.” (Ibid, pp. 300-301,
para. 115.)

And the Chamber explicitly considered the modest disparity in coastal
lengths in that case as “particularly notable” and as amounting to “a
special circumstance of some weight” (ibid., p. 322, para. 184).

Inthe Libya/ Malta case, in which the Court recited paragraph 57 of the
1969 Judgment, the median line was not used as the boundary; it was only
used “by way of a provisional step in a process to be continued by other

1 L.C.J. Reports 1984, pp. 300-301, para. 115; pp. 312-313, para. 157; p. 328, para. 197;
pp. 329-330, para. 201; pp. 331-332, para. 209; p. 332, para. 210; pp. 332-333, para. 212;
p. 333, para. 213; p. 334, para. 217.

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operations . . .” (.C.J. Reports 1985, p. 47, para. 62). The Court adjusted
the results produced by the median line precisely in order to take account
of a marked disparity in coastal lengths. The ultimate result was not at all
to divide the area equally between the two States; the State with the longer
coast got much more.

In the Anglo-French Arbitration, the Court of Arbitration said:

“In a situation where the coasts of the two States are opposite each
other, the median line will normally effect a broadly equal and equi-
table delimitation. But this is simply because of the geometrical
effects of applying the equidistance principle to an area of continental
shelf which, in fact, lies between coasts that, in fact, face each other
across that continental shelf. In short, the equitable character of the
delimitation results not from the legal designation of the situation as
one of ‘opposite’ States but from its actual geographical character as
such.” (RIAA, Vol. XVIII, p. 112, para. 239; first emphasis added.)

The Court of Arbitration was indeed speaking of broadly equal division
of the continental shelf by a median line. But how a median line could
divide the intervening continental shelf equally where the opposite coasts
are markedly unequal is thoroughly unclear. On the facts, this was not the
kind of situation which the Court of Arbitration envisaged. What it had in
mind was “an area of continental shelf which, in fact, lies between coasts
that, in fact, face each other across that continental shelf”. In such a case,

“the equitable character of the delimitation results not from the legal
designation of the situation as one of ‘opposite’ States but from its
actual geographical character as such”.

I hesitate to imagine that the Court of Arbitration would have used these
fact-oriented descriptions in the case of a small island coast confronting a
mainland coast nine times as long. That it did not contemplate such a case
is shown by paragraph 182 of its decision, reading:

“Between opposite States, as this Court has stated in paragraph 95,
a median line boundary will in normal circumstances leave broadly
equal areas of continental shelf to each State and constitute a delimi-
tation in accordance with equitable principles. It follows that where
the coastlines of two opposite States are themselves approximately
equal in their relation to the continental shelf not only should the
boundary in normal circumstances be the median line but the areas

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of shelf left to each Party on either side of the median line should be
broadly equal or at least broadly comparable. Clearly, if the Channel
Islands did not exist, this is precisely how the delimitation of the
boundary of the continental shelf in the English Channel would
present itself.” (RIAA, Vol. XVIII, p. 88.)

Thus, the Court of Arbitration was speaking of a broadly equal division
being produced by a median line “in normal circumstances”, as “where
the coastlines of two opposite States are themselves approximately equal
in their relation to the continental shelf”. It was in such cases that the use
of the median line would be equitable.

In my opinion, the case-law on equal division does not speak against
Denmark.

(ii) Norway’s Claim Considered on the Basis that a Median Line Effects
an Equal Division of the Distance between Opposite Coasts

Now to the second sense in which Norway rested its claim to a median
line on the idea of equality. This is the sense in which a median line effects
an equal division of the distance between opposite coasts.

I agree with Norway’s argument that what the median line operates
to divide equally is the distance between the two opposite coasts, and
not necessarily the maritime area. Unless the two opposite coasts are
mirror images of each other, both in configuration and in length, a
median line will not divide the maritime area equally. Equality, where
it is achieved, is really an aspect of proportionality. And so it may be
added more generally that a median line will not necessarily divide
the area in proportion to the coastal lengths where these are unequal.
Clearly, ideal situations in which exact proportionality can be achieved
cannot be the only ones in which Article 6, paragraph 1, of the 1958
Convention contemplated that the median line would be the boun-
dary. Hence, as I understand the Norwegian case, where that pro-
vision operates to prescribe the median line as the boundary, the median
line is the boundary even if it does not in fact divide the maritime
area in proportion to coastal lengths. True; but, in order to avoid a
petitio principii, it is necessary to bear in mind that whether in any given
situation the provision really operates to prescribe the median line
as the boundary depends on whether or not a median line will be creative
of inequity. In my opinion, this, though obviously a matter of degree,
turns, in the circumstances of this case, on the extent to which a median
line fails to satisfy the element of a reasonable degree of propor-

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tionality as between the coastal lengths and the corresponding maritime
areas.

By reason of a radial effect which favours the circular over the linear, a
given length of a typical island coast will generate a greater continental
shelf area than the same length of a typical mainland coast. It may be said
that this is an advantage which the law confers on an island and that there
is no reason why it should be deprived of that advantage where it happens
to lie less than 400 miles off a mainland coast (including that of a large
island such as Greenland). But it seems to me that there is an equitable
distinction between the case of an island enjoying that advantage where it
lies in the open sea beyond that distance and the case where it lies within
that distance opposite to another coast. In the former case, the enjoyment
by the island of its advantage does not affect the right appertaining to any
other coast; in the latter case, it does. On Norway’s proposal, Jan Mayen,
with a coastal front of 54 kilometres, would have a maritime zone of
96,000 square kilometres; East Greenland, with a coastal front of
504 kilometres, would have a maritime zone of 141,000 square kilometres.
Each kilometre of Jan Mayen’s coast would therefore generate a maritime
zone six times as great as that generated by a kilometre of East Green-
land’s coast. To say that the island is entitled by law to a line which accords
to a given length of its coast six times the continental shelf area appertain-
ing to the same length of the opposite mainland coast and that what the
law gives should not be withheld, is to exclude equity altogether from the
calculations which produce so disproportionate a result. If the matter fell
to be governed by Article 83, paragraph 1, of the Law of the Sea Conven-
tion of 1982, it might be fairly doubted whether such a disproportionality
would rank as an “equitable solution”.

Responding to Denmark’s arguments about disproportionality, Nor-
way observed that, where, as in this case, the two coasts are of unequal
length, a median line would operate to' give the larger area to the longer
coast. This is true; to an extent it can be said that the median line does take
account of a disparity in coastal lengths and that there would be duplica-
tion if that disparity were to be separately or additionally treated. But,
although the median line would leave a larger area to the longer coast,
this would not necessarily ensure that there is no excessive dispropor-
tionality.

Objectively considered, there is nothing in the geography of the rele-
vant area to suggest that each kilometre of Jan Mayen’s coast must gen-
erate six times as much continental shelf as a kilometre of the relevant
coast of East Greenland, as would be the case on Norway’s proposal.

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True, the idea of the continental shelf is a creature of law. But, even so, in a
case of this kind one is supposed to be delimiting a maritime area between
opposite physical coasts. This area — the “relevant area” — is the territory
covered by converging projections from each opposite coast (see the
reasoning in Tunisia/Libya, I.C.J. Reports 1982, pp. 61-62, para. 75). Nor-
way did not present any idea of the relevant area, but Denmark did.
I accept Denmark’s idea of the area as accurate. It is represented roughly
by the figure AEFB, BCDG, GH and HA shown in sketch-map No. 1
included in the Judgment. When this figure is interpreted in the light of the
pertinent material, it will be seen that the relevant area which it represents
is bounded on the west wholly by 504 kilometres of the coast of
East Greenland, but that on the east it is only in very small part that it is
bounded by 54 kilometres of the coast of Jan Mayen. On the east, it is
bounded by the western coast of Jan Mayen notionally projected
200 miles to the north and 100 miles to the south-west up to the outer limit
of Iceland’s maritime area (see Memorial, Vol. I, Map II; Rejoinder,
Map VI; Reply, Vol. I, Map V; and Figs. 12, 14 and 15, presented by Den-
mark). The use of a median line means that what is being divided is not the
space between East Greenland and Jan Mayen, but the space between
East Greenland and the western coast of Jan Mayen artificially extended
to the north and to the south-west.

Hence, when Norway insists on “the legal equality of a median line”
(CR 93/7, p. 58, 19 January 1993, Professor Brownlie), in the sense of
equality in the seawards reach of the generating capacity of each coast, it is
a legal equality which carries with it the benefit to Norway of being
applied to an area the eastern boundary of which can only theoretically be
said to be represented by Jan Mayen, whereas the western boundary is
practically coterminous with the relevant coast of East Greenland.

It was the argument of Denmark that, in the case of a short island coast
confronting a long mainland coast, equity could not be achieved unless
the delimitation line were drawn nearer to the short coast than would be
the case if a median line were used, so as to avoid any excessive dispropor-
tionality. Norway disagreed.

To illustrate its criticisms of Denmark’s proposition, Norway intro-
duced Figure No. 10, reproduced on the following page. It shows, as one
would expect, that, as between two equal and parallel coastlines (one lying
north of the other) a median line accomplishes an equal division of the
intervening maritime space. Norway, however, understood Denmark’s
reasoning to have the consequence that, if the northern coast were broken
up among several different States, then

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Fic. No. 10

SCHEMATIC ILLUSTRATION OF INFLUENCE OF COASTLINES
ON MEDIAN LINE CONSTRUCTION

Coast of State A

Coast of State B

Coasts of States

A B Cc D E

Coast of State F

Coasts of States

(AT f[e]fe)] Po] Le Jl]

Coast of State G

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186 MARITIME DELIMITATION (SEP. OP. SHAHABUDDEEN)

“the long coast [on the south] would by its length alone lead to a loca-
tion of each of the several [maritime] boundaries to the north of a
median line between the physical coastlines” (CR 93/11, p. 45,
27 January 1993, Professor Brownlie).

If that were the consequence of Denmark’s reasoning, it would be plainly
inequitable, tending, as it would, to favour the southern coast as against
the northern coast taken as a whole, both being equa! in length. But, con-
trary to Norway’s analysis, each of the short coasts on the north would
not, in that situation, be facing the whole of the long coast on the south. If
the northern long coast came to be divided up among several States, any
tendency in the projections of each resulting short coast to fan out sea-
wards would be confined by an opposing tendency generated from the
neighbouring short coast (Libya/Malta, I.C.J. Reports 1985, pp. 79-80,
para. 10, and p. 80, para. 14, joint separate opinion). The projections from
any given short coast would not oppose those from the whole of the oppo-
site long coast. In the result, in the case of any of the short coasts, the
relevant opposite coast would be, notthe whole of the opposite long coast,
but only that small part of it which was equal to that of the short coast.
Thus the relevant coasts would be two equal and parallel short coasts, and
the maritime space between them would be equally — and equitably —
divided by a median line. Denmark’s arguments do not lead in such a case
to a northward shift in the position of the median line, and its thesis can-
not be faulted on the basis that it would produce inequitable results if such
a shift were made. So too if the northern long coast were broken up into a
series of islands, each near to the other; for, in such a case, the radial pro-
jections of each island would be cut off by those of the island next to it,
with the result that the coast of each island would be left to face only a
corresponding length of the southern long coast and not the whole of the
latter.

Denmark’s submission that a shift is required to achieve equity is
directed only to the case where an otherwise isolated short coast — such as
that of a small island standing alone in the open seas — confronts a
long mainland coast, such as the relevant part of the coast of East Green-
land. Removing from Figure No. 10 all elements not relevant to such a case,
it will be apparent from the remaining elements that in such a case — the
case presented by Denmark — a median line will indeed divide the mari-
time area so as to give to each kilometre of the short coast a markedly
greater area of the maritime zone than it would give to each kilometre of
the opposite long coast. Granted that mathematical equality is not the cri-
terion, yet where, as in this case, the discrepancy in areas attributable to a
kilometre of each coast is in the order of a ratio of 6: 1 in favour of the short
coast, insistence that “legal equality” is nevertheless satisfied because the

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distance between the coasts is still equally divided by the median line
becomes too remote from common understanding to satisfy the kind of
practical equality that it should be the aim of equity to achieve in interna-
tional relations. In my opinion, a disproportionality of that magnitude
amounts to an inequity disqualifying the median line as an equitable
method of delimitation.

(iii) Denmark's Claim Considered on the Basis of Equality in the Sense of
Treating Like with Like

At this stage, the main features of Denmark’s case will have sufficiently
appeared from the foregoing. It is, of course, based on considerations
relating to proportionality. But there is a particular feature of this concept
which Denmark invoked. In the words of the Court, “the essential aspect
of the criterion of proportionality is simply that one must compare like
with like” (Tunisia/Libya, I.C.J. Reports 1982, p. 91, para. 130). Or, as it
also said, “the only absolute requirement of equity is that one should com-
pare like with like” (ibid., p. 76, para. 104). I believe it was in this sense that
counsel for Denmark submitted that to treat coasts of unequal length as if
they were of equal length is to treat them unequally (CR 93/10, p. 51,
25 January 1993, Professor Bowett).

There are warnings in the books, doubtfully made, that the common
law maxim “Equality is equity” needs qualification when sought to be
extended to the field of international law. In international relations, situa-
tions tend to become highly individualized, perhaps, it is said, even more
so than at the municipal level, and an equality of treatment which entirely
neglects an inequality of conditions and their results can lead to grave
injustice (Charles De Visscher, De l'équité dans le règlement arbitral et judi-
ciaire des litiges de droit international public, 1972, pp.7, 8,32; and Minority
Schools in Albania, P.C.L.J., Series A/B, No. 64, p. 4, at p. 19). Conse-
quently, “Rétablir l’équilibre entre des situations différentes, tel peut être
l’objet d’une égalité qui répond à l’équité” (Charles De Visscher, op. cit.,
p. 7. And see Paul Reuter, “Quelques réflexions sur l'équité en droit inter-
national”, Revue belge de droit international, 1980-I, Vol. XV, p. 165, at
pp. 170-173). I construe that and similar statements to the effect that
equity is concerned with the achievement of a balance or equilibrium of
competing interests as meaning that, where the positions being considered
are materially different, equality translates out as proportionality so as to
achieve an equality in relations. The substance of the idea was expressed
by Judge Tanaka when, dealing admittedly with another area of the law,
he said:

“the principle of equality before the law does not mean the absolute
equality, namely equal treatment of men without regard to individ-

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ual, concrete circumstances, but it means the relative equality,
namely the principle to treat equally what are equal and unequally
what are unequal” (South West Africa, I.C.J. Reports 1966, pp. 305-
306, dissenting opinion).

The common law maxim is not really deficient on the point, it being
accepted, at least today, that “the word ‘equality’ in the maxim means
not literal equality but proportionate equality” (R. P. Meagher,
W. M. C. Gummow and J. R. F. Lehane, Equity, Doctrines and Remedies,
3rd ed., 1992, p. 87, para. 330).

It is indeed the case that, as the Chamber said in the Frontier Dispute
case:

“Although ‘Equity does not necessarily imply equality’ (North Sea
Continental Shelf, I.C.J. Reports 1969, p. 49, para. 91), where there are
no special circumstances the latter is generally the best expression of
the former.” (1.C.J. Reports 1986, p. 633, para. 150.)

Thus, subject to reasonable exceptions for “special circumstances”, the
idea of equality is central to equity. What the Court said in 1969 was that
“{e]quity does not necessarily imply equality” (North Sea, I.C.J. Reports
1969, p. 49, para. 91); the Court did not say that “[e]quity does not imply
equality”. To abstract the idea of equality altogether from equity is at once
to denude the latter of meaning and to disfigure the Court’s statement on
the subject. But, while the Court did not therefore exclude the idea of
equality from equity, it did emphasize that “[ejquality is to be reckoned
within the same plane” (ibid., p. 50, para. 91). This was why the Court was
concerned, in the circumstances of the case, to ensure that States with
comparable coastlines should be accorded practical equality of treatment.
That too was why the Court was equally unable to accept that “there could
[ever] be a question of rendering the situation of a State with an extensive
coastline similar to that of a State with a restricted coastline” (ibid.
pp. 49-50, para. 91). I should have thought that this straightforward and
pertinent statement of principle was directly threatened where a coastline
nine times as long as another was assigned an area of the continental shelf
just one and a half times as large as that assigned to the other. Yet that

‘ would be the consequence in this case unless the disparity in coastal
lengths could be regarded as a special circumstance displacing the use of
the median line. Can it be so regarded?

Responding to Denmark’s claim that Jan Mayen, par excellence, is a
special circumstance, Norway contends that a special circumstance is
some incidental physical feature which would distort a median line fixed
by reference to the primary components of the relevant geographical
region; that Jan Mayen is not such an incidental physical feature but is
itself one of the components of the delimitation area; and that it cannot in

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consequence be a special circumstance in the delimitation of its own coas-
tal projections. The situations in some cases support Norway’s idea of a
special circumstance. See, for example, the North Sea cases, the Anglo-
French Arbitration, and the Tunisia/Libya case. Cases in which some islet
or other physical feature between opposite coasts would operate to impart
an unduly distorting effect on a median line are obviously not apt in this
case. Denmark’s attempt, in the course of the written pleadings, to treat
Jan Mayen itself as occurring “on the wrong side” of a delimitation line
between mainland Norway and Greenland (Reply, Vol. I, p. 109,
para. 299) was rightly not pursued in the oral arguments, there being no
question of any continental shelf between these two territories falling to
be delimited.

How then can Jan Mayen be a special circumstance? The question
turns on another: what is the scope of “special circumstances”? In the
North Sea cases, the Court itself referred to “still unresolved controversies
as to the exact meaning and scope of this notion” (1.C.J. Reports 1969,
p. 42, para. 72. See also ibid., p. 254, Judge ad hoc Sorensen, dissenting).
And in 1977 the Anglo-French Court of Arbitration had reason to note
that

“Article 6 neither defines ‘special circumstances’ nor lays down
the criterion by which it is to be assessed whether any given circum-
stances justify a boundary line other than the equidistance line”
(RIAA, Vol. XVIII, p. 45, para. 70).

It is useful, however, to recall the statement of Judge Lachs in his dissen-
ting opinion in the North Sea cases that “the application of the rule [of
equidistance], and the admission of possible exceptions from it, call for a
reasonable approach”; as he remarked, “‘Reasonableness’ requires that
the realities of a situation, as it affects all the Parties, be fully taken into
account” (LC.J. Reports 1969, p. 239).

Adhering to my opinion that “special circumstances” within the mean-
ing of Article 6 of the 1958 Convention are narrower than “relevant cir-
cumstances” at customary international law, it nevertheless appears to me
that the former could reasonably encompass a variety of situations.

I do not think that I need take up a position on the question whether
a priori a primary component of a relevant area may not be a special cir-
cumstance. The real question is not whether Jan Mayen is per se a special
circumstance, but whether the relationship between Jan Mayen and
Greenland is a special circumstance. No doubt, the International Law
Commission had in mind particular physical features or irregularities
which would have an unduly distorting effect on an equidistance line that
would otherwise be required (North Sea, I.C.J. Reports 1969, pp. 92-94,

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Judge Padilla Nervo, separate opinion; Tunisia/Libya, I.C.J. Reports
1982, pp. 187 ff., Judge Oda, dissenting; and Libya/Malta, I.C.J. Reports
1985, pp. 142 ff., Judge Oda, dissenting). But it would seem to me that the
true underlying principle is that a circumstance is a special circumstance
if it is such as to render the use of the median line inequitable. Thus
viewed, special circumstances could include circumstances in addition
to those which impart some peculiar shape to the median line. Even
assuming that Jan Mayen is not per se a special circumstance, the
disparity between its coastal length and that of East Greenland would
render the use of the median line inequitable and is accordingly a
special circumstance.

In the Libya/Malta case, Judge Oda, dissenting, remarked:

“The technique of the present Judgment involves taking the entire
territory of one Party as a special circumstance affecting a delimita-
tion...” U.CJ. Reports 1985, pp. 138-139, para. 27.)

Judge Oda was critical of the Judgment on the point. Whether his criti-
cisms were justified or not does not affect the correctness of his perception
that the Court had in reality treated “the entire territory of one Party as a
special circumstance” — or perhaps, more accurately, the entire coastline
of the territory of one Party in its relationship with that of the other. The
coastlines involved were, of course, those of a small island and that of an
opposite long mainland coast. The island in this case is not only a small
one facing a long mainland coast; it is an isolated small island facing a
long mainland coast — isolated in the particular sense that its radial pro-
jections, in relation to the long coast, are not constrained by the projec-
tions from any third coasts. I am of opinion that this constitutes a special
circumstance which excludes the use of the median line under Article 6,
paragraph 1, of the 1958 Convention, and support the finding of the Court
to the same effect.

(iv) The Fishery Zone

The foregoing observations concerned the continental shelf and were
premised on the applicable law being that laid down in the 1958 Conven-
tion. In contrast, the delimitation of the fishery zone is governed by gen-
eral international law. The conclusion reached in relation to the continen-
tal shelf is however applicable in principle to the case of the fishery zone,
in the sense that, taking account of the relevant circumstances, equitable
principles would preclude the use of the median line for its delimitation.

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PART IV. THE DETERMINATION OF AN EQUITABLE LINE

Proportionality by itself cannot serve as a method of delimitation, but,
in the special circumstances of the case, it would indicate a line lying
somewhere between Denmark’s 200-mile line and the western outer limits
of Jan Mayen’s territorial sea. Since the maximum limit under contempor-
ary international law for the continental shelf in this case is 200 miles,
Denmark submits that the delimitation line is the 200-mile line proposed
by it. Norway’s criticism that this involves a correction of equity by law is
attractive but not convincing. I do not interpret Denmark’s reference to a
possible line beyond the 200-mile limit as being a reference to a line fixed
by equity in opposition to one fixed by law, so that equity would then have
to be corrected by law. It is only a step in the theoretical reasoning
employed by Denmark to demonstrate the extent to which equity would
give effect to what it perceives to be the fair intent of the law in the special
circumstances of the case, that extent being bounded by the 200-mile limit
fixed by the law. Equity itself being part of the law, there is no question
either of equity correcting law or of law correcting equity.

Denmark’s 200-mile line would yield an areal ratio of 6.64 to 1 in favour
of Greenland, as against a coastal length ratio of 9.2 to 1 in favour of
Greenland. So Jan Mayen would still be securing proportionately more
than Greenland. But the problem with Denmark’s approach, to which
I have been otherwise much drawn, is that it would have the effect of
assigning to Denmark the whole of the area lying between the two over-
lapping 200-mile lines. That point, which has been pressed by Norway, is
not conclusive proof of infirmity in Denmark’s argument; for, in the
North Sea cases, the Court did visualize the possibility that a delimitation
line could leave the “disputed marginal or fringe area .. . wholly to one of
the parties”. It is, however, possible to interpret the Court’s statement as
suggesting that it would be more usual for the delimitation line to “divide
it between them in certain shares, or operate as if such a division had been
made” (1.C.J. Reports 1969, p. 22, para. 20).

Thus, while equity is not synonymous with splitting the difference, it is
only in extreme conditions, if at all, that it would be right to exclude a
party altogether from the “disputed marginal or fringe area”. I consider
that those conditions come near to being satisfied in the special circum-
stances of this case, but not quite. Although I would have preferred a line
lying somewhat more to the east of that determined by the Court and
derived by way of a moderate westward shift of Denmark’s line, I cannot
say that my preference is so compellingly right as ito disable me from
adhering to the Judgment on this point.

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I apprehend, however, that it is necessary to consider possible criti-
cisms of the discretionary character of the decision. The method by which
the line has been determined by the Court follows the precedent set in the
Libya/ Malta case. There, as has been seen, a two-stage procedure was
applied involving the provisional drawing of a median line and a shift in
the position of that line to take account of the disparities in coastal
lengths, with the final line lying nearer to the short coast than to the long.
The problem which this procedure presents is one of quantification of
equity, in the sense of finding a rationale to justify the extent to which the
shift is made. Why exactly that extent? Why not a little more, or a little
less? The difficulty of finding a persuasive answer increases with the
extent of the shift.

The problem is a familiar one in the field of exercising a judicial discre-
tion. A residue of discretion is intrinsic to the judicial function (see
Sir Robert Y. Jennings, “Equity and Equitable Principles”, Schweizer-
isches Jahrbuch für internationales Recht, Vol. XLII (1986), p. 35, and Gulf
of Maine, I.C.J. Reports 1984, p. 357, Judge Schwebel, separate opinion).
The process of assessing damages offers an illustration; in such a case, as
the Court itself observed, “the precise determination of the actual amount
to be awarded could not be based on any specific rule of law” (Judgments
of the Administrative Tribunal of the ILO upon Complaints Made against
Unesco, I.C.J. Reports 1956, p. 100). It would not be right to suppose that
observers who have expressed disquiet are unacquainted with the prin-
ciple involved. Nor should it be felt that they consider it fatal that there is
no “rule for the mathematical delimitation of” maritime zones (Fisheries
Jurisdiction, I.C.J. Reports 1974, p. 96, Judge de Castro, separate opinion).
They recognize that within bounds, which may well be ample, judicial
discretion is available to fill the gap (Libya/Malta, I.C.J. Reports 1985,
p. 187, Judge Schwebel, dissenting). But, as was observed by President
Bustamante y Rivero speaking of Spanish administrative law, “a discre-
tionary power by no means implies an arbitrary one” (Barcelona Traction,
Light and Power Company, Limited, I.C.J. Reports 1970, pp. 59-60, separate
opinion). In the field of maritime delimitation, where the margin of appre-
ciation is as wide as it is, the difficulty is one of offering a satisfactory legal
basis for any particular exercise of the discretion if the result is not to
appear to be “a line which the Court has derived ex nihilo” (Tunisia/Libya,
I.CJ. Reports 1982, p. 150, para. 14, Judge Gros, dissenting).

The Court has emphasized that its powers of appreciation in the appli-
cation of equitable principles are to be distinguished from a power to
decide ex aequo et bono (Tunisia/ Libya, 1.C.J. Reports 1982, p. 60, para. 71;
and see Libya/Malta, I.C.J. Reports 1985, p. 39, para. 45, and Gulf of
Maine, I.C.J. Reports 1984, p. 278, para. 59). Tightening up a less well-

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defined position taken in the Tunisia/Libya case, it has recognized too
that the equity which it applies “should display consistency and a degree
of predictability” (Libya/Malta, I.C.J. Reports 1985, p. 39, para. 45). The
response, however, is that the equitable principles. which the Court
applies lack concreteness of content to the point where the Court is in fact
exercising a range of discretion which is practically indistinguishable
from a power to decide ex aequo et bono (see, generally, E. Lauterpacht,
Aspects of the Administration of International Justice, 1991, pp. 124-130). In
the words of Judge Gros:

“A decision not subject to any verification of its soundness on a
basis of law may be expedient, but it is never a judicial act. Equity
discovered by an exercise of discretion is not a form of application of
law.” (Gulf of Maine, I.C.J. Reports 1984, p. 382, para. 37, dissenting.
And see Tunisia/Libya, I.CJ. Reports 1982, p. 153, para. 18,
Judge Gros, dissenting.)

Graver still is the warning “that an inordinate use of equity would lead to

government by judges, which no State would easily accept” (Gulf of
Maine, LC.J. Reports 1984, p. 385, para. 41, Judge Gros, dissenting). Criti-

cisms of this order of severity deserve consideration.

The judicial character of the Court, rightly emphasized by Judge Kel-
logg in Free Zones of Upper Savoy and the District of Gex (P.C.I.J., Series À,
No. 24), does not neutralize the fact that, pursuant to Article 38, para-
graph 2, of its Statute, the Court, if authorized by the Parties, may act in
disregard of existing international law (A. P. Fachiri, The Permanent Court
of International Justice, 2nd ed., 1932, pp. 105-106; Dr. Max Habicht, The
Power of the International Judge to Give a Decision “ex aequo et bono”, 1935,
pp. 20-27; and Charles De Visscher, op. cit., pp. 21-26). In such a case,

“the Court is not compelled to depart from applicable law, but it is
permitted to do so, it may even call upon a party to give up legal
rights. Yet it does not have a complete freedom of action. It cannot
act capriciously and arbitrarily. To the extent that it goes outside the
applicable law, or acts where no law is applicable, it must proceed
upon objective considerations of what is fair and just. Such consider-
ations depend, in large measure, upon the judges’ personal apprecia-
tion, and yet the Court would not be justified in reaching a result
which could not be explained on rational grounds.” (M. O. Hudson,
The Permanent Court of International Justice, 1920-1942 (1943 ed.),
p. 620, para. 553.)

Although an ex aequo et bono power does not require a departure from
principles of law, its hallmark is that it permits of such a departure. Where
no such departure is in question, it is not correct to speak of a tribunal as

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acting ex aequo et bono, even where the tribunal may itself have used the
term in describing its decision (see Judgments of the Administrative Tribu-
nal of the ILO upon Complaints Made against Unesco, I.C.J. Reports 1956,
p. 100). No power to depart from principles of law is exercisable in an
equitable delimitation by the Court. Wide as are the Court’s powers of
appreciation, they are powers conferred by the law itself; their exercise
results in a judicial definition of the existing legal relations between the
parties, and not in a legislative creation of new legal relations displacing
existing ones between them (see, generally, Sir Hersch Lauterpacht, The
Development of International Law by the International Court, 1958, p. 213,
para. 68; and, also by him, Private Law Sources and Analogies of Interna-
tional Law (with Special Reference to International Arbitration), 1927,
pp. 65-66, para. 28). This being the case, it would not be right to regard an
application by the Court of equitable principles as amounting to the
assumption of a power to act ex aequo et bono.

Putting aside cases in which an arbitrator is restricted to determining
which of two lines is the boundary, it seems appropriate to recall the
words used by Hersch Lauterpacht when he wrote:

“Tf [an arbitrator] chooses an intermediate line, there is no reason
for maintaining with any degree of cogency that the boundary chosen
is a common denominator arrived at through a process of compro-
mise and mediation, as distinguished from a strictly judicial pro-
cedure. Unless he is expressly precluded by the terms of the arbitra-
tion agreement from adopting such a course, he may — in fact, he
must — by balancing the relative value of the arguments and proofs
adduced by the parties, fix a line which he deems to be correct in
law. He may choose a line suggested by one party. But he need not
necessarily do so.” (Hersch Lauterpacht, The Function of Law in
the International Community, 1933, p. 132; emphasis added.)

Writing earlier with reference to allegations that the result of the
St. Croix boundary arbitration “was rather effected by negotiation than by
a Judicial determination”, J. B. Moore likewise remarked:

“It certainly is true that the decision did not fully allow the claim of
either party; but it is permissible to take the view that what appeared
to the advocate of one of the parties, and no doubt equally to the
advocate of the other party, to be a ‘negotiation’ rather than a ‘Judi-
cial determination’, since it required the abandonment by each of a
part of his contentions, was after all only an example of the necessary
process of adjustment, of the weighing of one consideration against
another, by which, in the presence of proofs concerning the effect of
which opinions may inevitably differ, concurrent and just human
judgments, judicial and otherwise, are daily reached.” (J. B. Moore

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(ed.), International Adjudications Ancient and Modern, 1930, Vol. 2,
pp. 367-368; emphasis added.)

The individualization of justice, through the application of legal norms
framed in terms of standards, in such a way as to reconcile a tolerable
degree of predictability with the need to adjust to the peculiarities of a
special situation is not the same as eclecticism or arbitrariness (see Fisher-
ies Jurisdiction, I.C.J. Reports 1974, p. 56, footnote 1, Judge Dillard, sepa-
rate opinion). To resort to such standards is to “recognize that within the
bounds fixed each case is to a certain extent unique” (Roscoe Pound, An
Introduction to the Philosophy of Law, 1930, p. 118. And see ibid.
pp. 113-120, and, also by him, “Hierarchy of Sources and Forms in Differ-
ent Systems of Law”, Tulane Law Review (1933), Vol. 7, p. 485). As has
been said:

“When courts are required to apply such standards as fairness,
reasonableness and non-arbitrariness, conscionableness, clean
hands, just cause or excuse, sufficient cause, due care, adequacy, or
hardship, then judgment cannot turn on logical formulations and
deductions, but must include a decision as to what justice requires in
the context of the instant case. This is recognised, indeed, as to many
equitable standards, and also as to such notorious common law
standards as ‘reasonableness’. They are predicated on fact-value
complexes, not on mere facts.” (Julius Stone, Legal System and Law-
yers’ Reasonings, 1964, pp. 263-264; footnotes omitted. And see,
generally, also by him, The Province and Function of Law, 1946,
pp. 318-319, 325-326, 411-412.)

In such cases, it is only as the decision-maker approaches the limits of the
available range of discretion that any particular decision (and no other) is
compellingly right (Julius Stone, Legal System and Lawyers’ Reasonings,
1964, p. 264).

“From Principles to Pragmatism : Changes in the Function of the Judi-
cial Process and the Law” was the title chosen by Professor P. S. Atiyah for
his inaugural lecture delivered before the University of Oxford on 17 Feb-
ruary 1978 (Iowa Law Review, 1980, Vol. 65-II, p. 1249). The title, though
challenging, speaks for itself. On the subject of “the modern version of
Equity”, he wrote:

“Surely there can be no doubt that the modern judicial discretion,
sometimes statutory, but sometimes also self-granted, to do what
is thought just according to all the circumstances of the case is the
twentieth-century version of Equity.” (Ibid. p. 1255.)

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A little later he added:

“The law ... is now largely based on the assumption that the infi-
nite variety of circumstances is such that the attempt to lay down gen-
eral rules is bound to lead to injustice. Justice can only be done by the
individualized, ad hoc approach, by examining the facts of the par-
ticular case in great detail and determining what appears to be fair,
having regard to what has happened.” (P. S. Atiyah, op. cit., Iowa Law
Review, 1980, Vol. 65-II, p. 1256.)

And then, referring to “an increasing tendency to use legal tools and tech-
niques which have an in-built flexibility”, he cited as the “outstanding
example... the very wide use made today of standards of reasonableness”
(ibid.). It is unlikely that the jurisprudential phenomena examined by Pro-
fessor Atiyah have no counterpart in other legal systems, or that they are
irrelevant to international law merely by reason of distinctions between
equity in international law and equity in municipal law.

Nothing in these trends provides justification for dispensing with the
need to define the area of judicial discretion by clear bounds, or to estab-
lish criteria governing its exercise within the prescribed limits. But it
seems to me that such limits are to be found in the settled principle that the
Court is concerned not to apportion common property, but to delimit
rights already separately appertaining to each party. As argued above, a
delimitation may indeed operate to settle definitively what is the extent of
competing rights in marginal areas, but it does not have the effect of
sharing out undivided property. The criteria governing a delimitation are
also reasonably clear (see, for example, Gulf of Maine, I.C.J. Reports 1984,
pp. 312-313, para. 157; and Libya/ Malta, I.C.J. Reports 1985, pp. 39-40,
para. 46). What remains is the task of weighing and balancing the opera-
tion of the applicable criteria within those limits. Admittedly, the process
could be a difficult one, because, as the Court said in 1969, “The problem
of the relative weight to be accorded to different considerations naturally
varies with the circumstances of the case” (North Sea, I.C_J. Reports 1969,
p. 50, para. 93). But difficulties of this kind experienced in discharging the
task of the Court are not enough to take the Court beyond the province of
the judicial mission.

The need to weigh and balance competing considerations necessarily
places a limit on the capacity of a court to adjudicate with mathematical
precision. Inability to demonstrate that level of exactness is not inconsis-
tent with the due discharge of the judicial mission. To expect more is not
merely to overestimate the judicial function; it is to misunderstand it. The
misunderstanding is compounded where that function relates to maritime
delimitation, a field in which it is particularly useful to bear in mind Pro-

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fessor Paul Reuter’s general remark that international law “est nécessaire-
ment simple et un peu rustique” (.C.J. Pleadings, Temple of Preah Vihear,
Vol. II, p. 85). To be sure, there is substance in the view that “a decision
cannot be equitable when litigants do not understand the decision, how it
was reached, nor why such legal rules should be applied to” the situation!.
However generously one may be inclined to locate the boundaries of judi-
cial discretion, it has always to be exercised on a disciplined basis and with
reference to verifiable criteria. Yet, looking at the nature of the Court’s
functions in this case and at a certain indeterminacy in the circumstances
to be taken into account, I consider that there is a sufficiency of reasoning
to sustain its view that neither Norway’s claim to the median line nor Den-
mark’s claim to the 200-mile line is right, and that an equitable line is that
established by its Judgment.

Part V. THE COMPETENCE TO ESTABLISH A SINGLE LINE

Denmark seeks a single line for the continental shelf and the fishery
zone. That I understand as including two separate but congruent lines.
Norway contends that, except where the application of international law
would ordinarily result in two separate but congruent lines, Denmark’s
request cannot be granted in the absence of a supporting agreement by the
Parties, and that there is in fact no such agreement. Denmark’s reply is
that —

(a) the authority of the Court to fix a single dual-purpose line flows from
the fact that the case relates to the delimitation of two zones, and
that the agreement of the Parties to request the Court to fix such a
boundary is not necessary;

(b) alternatively, if such an agreement is necessary, it can be derived from
the fact that each Party in its separate submissions is in fact asking the
Court to fix a single boundary.

As to the first question, it is necessary to begin by noticing the relation-
ship between the boundary in the continental shelf and that in the fishery
zone. Whatever might be their precise relationship to the exclusive econ-
omic zone, the continental shelf and the fishery zone are each an institu-

1 Laura Nader and June Starr, “Is Equity Universal ?”, in R. A. Newman (ed.), Equity
in the World’s Legal Systems, A Comparative Study, 1973, p. 125, at p. 133, cited in
J. I. Charney, “Ocean Boundaries between Nations: A Theory for Progress”, American
Journal of International Law, 1984, Vol. 78, p. 582, at p. 595, note 69.

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tion known to law. That is certainly the case with the continental shelf. Itis
equally the case with the fishery zone. Going back a long way in time
(D. P. O’Connell, The International Law of the Sea, Vol. 1, 1982, pp. 510 ff.;
and Fisheries Jurisdiction, 1.C.J. Reports 1974, p. 82, Judge de Castro, sepa-
rate opinion), the idea of the fishery zone evolved through customary
international law, the question of extent being a particularly thorny one
(Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, ILC.J. Reports
1974, p. 23, para. 52. And see ibid., Jurisdiction, LC.J. Reports 1973,
pp. 24 ff., Judge Fitzmaurice, separate opinion, and pp. 40 ff., Judge
Padilla Nervo, dissenting). In the Gulf of Maine case, the Chamber was
concerned with 200-mile fishery zones established in 1977 by both Parties,
“basing themselves on the consensus meanwhile achieved at the Third
United Nations Conference on the Law of the Sea” (Z.CJ. Reports 1984,
p. 282, para. 68. And see ibid., p. 265, para. 20, and p. 278, para. 58). The
Chamber assumed that such a fishery zone was an institution known to
law. Whether the establishment today of a fishery zone is in reality a
limited use of a wider competence deriving from the newer institution of
the exclusive economic zone is an interesting question, particularly in
view of the responsibilities involved in the latter (see Carl August
Fleischer, “Fisheries and Biological Resources”, in René-Jean Dupuy
and Daniel Vignes, A Handbook on the New Law of the Sea, Vol. 2, 1991,
pp. 1055 ff.). But I do not consider it necessary to enter into that issue. The
assumption made by the Chamber in the Gulf of Maine case that a
-200-mile fishery zone established in 1977 was an institution known to law
should not be less valid for the fishery zones in this case, which were
established in 1980.

Now, it is possible to conceive of two sets of rights co-existing within the
same physical space. Rights of that kind would be susceptible of delimita-
tion by a single line. But the rights conferred by the continental shelf and
the fishery zone do not exist within the same space. The continental shelf,
which exists ipso jure, confers rights in respect of the natural resources of
the sea-bed and the subsoil. The fishery zone, which requires to be estab-
lished, confers rights in respect of the living resources of the superjacent
water column. The latter is not “a mere accessory” of the underlying con-
tinental shelf (Gulf of Maine, .C.J. Reports 1984, p. 301, para. 119).
Though physically in contact, the two institutions are both legally and
spatially distinct (Fisheries Jurisdiction (United Kingdom v. Iceland),
Merits, I.C.J. Reports 1974, pp. 45-46, para. 4, first sentence, joint sepa-
rate opinion of Judges Forster, Bengzon, Jiménez de Aréchaga, Nagendra
Singh and Ruda; and Gulf of Maine, I.C.J. Reports 1984, p. 367, para. 12,
Judge Gros, dissenting). Theoretically, the only sense in which it is pos-
sible to establish a single line for them is by way of the establishment of
two similar lines, one superimposed on the other. But even a single line in
this sense can be established only where the criteria governing the delimi-

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tation of overlapping rights to each of the two sets of resources are the
same; and they need not be!. The possibility of distinct lines was recog-
nized in the Gulf of Maine case (I C.J. Reports 1984, p. 314, para. 161).

Many of the resulting problems relating to a single-line delimitation
were critically considered in the dissenting opinion of Judge Gros in the
Gulf of Maine case (ibid., p.360). Obviously, parties can do many things by
agreement which cannot be done by the Court. Where the parties have not
agreed to a single line, such a line can be produced only if the criteria
regulating the delimitation of the continental shelf happen to lead to the
same result as the criteria regulating that of the fishery zone. Failing this
concordance, the only way to prevent different boundaries from resulting
is, by an appropriate process of selection, to use only such delimitation
criteria as are common to both cases. But this could involve the non-use of
some criteria the use of which would otherwise have been required by
international law were the Court engaged in delimiting one space only.
This was made clear in the Gulf of Maine case, in which the Chamber said:

“In other words, the very fact that the delimitation has a twofold
object constitutes a special aspect of the case which must be taken
into consideration even before proceeding to examine the possible
influence of other circumstances on the choice of applicable criteria.
It follows that, whatever may have been held applicable in previous
cases, it is necessary, in a case like the present one, to rule out the
application of any criterion found to be typically and exclusively
bound up with the particular characteristics of one alone of the two
natural realities that have to be delimited in conjunction.” (Jbid.,
p. 326, para. 193; emphasis added.)

Thus the establishment of a single line might require the Court

“to rule out the application of any criterion found to be typically and
exclusively bound up with the particular characteristics of one alone
of the two natural realities that have to be delimited in conjunction”
(ibid.).

1 See L.C.J. Pleadings, Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Vol. V,
p. 246, question IV (1) of Judge Oda’s questions, and p. 503, para. IV (1) of Libya’s reply;
LCA. Pleadings, Maritime Delimitation in the Gulf of Maine Area, Vol. VI, p. 461, Presi-
dent Ago’s question; Gulf of Maine, I.C.J. Reports 1984, p. 3 17, para. 168, p. 326,
paras. 192-193; Paul Jean-Marie Reuter, “Une ligne unique de délimitation des espaces
maritimes ?”, in Mélanges Georges Perrin, 1984, p.251, at p.256; D. W. Bowett, The Legal
Regime of Islands in International Law, 1978, pp. 188-189; and R. R. Churchill, “Marine
Delimitation in the Jan Mayen Area”, in Marine Policy, 1985, Vol. 9, pp. 26-27. There is a
well-known divergence between the boundary of the continental shelf and that of the
economic zone in the case of the Australia/Papua New Guinea Maritime Boundaries
Treaty of 1978.

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And yet, under international law, the Court would be required to apply
precisely such a criterion. Can the parties, by agreement, empower the
Court to act otherwise, where the agreement is not one which takes effect
under Article 38, paragraph 2, of the Statute of the Court?

It depends on the nature of the agreement. The parties may by agree-
ment competently fix a boundary on a basis having nothing to do with the
application of legal principles; it does not follow that they could author-
ize the Court to fix the boundary on a similar basis, unless the agreement
takes effect under Article 38, paragraph 2, of the Statute of the Court
(which is not the case here). True, in the absence of jus cogens (scarcely
applicable in relation to maritime delimitation), the parties can agree to
derogate from rules of international law (North Sea, LC.J. Reports 1969,
p. 42, para. 72); but, although the jurisdiction of the Court is consensual,
its proceedings are judicial and do not represent a delegated negotiation
or a negotiation by proxy (see arguments of counsel for Canada in the
Canada/France Arbitration, Transcript of the Canadian Pleadings,
Vol. 11, p. 1088). However, an agreement empowering the Court to fix a
single-line boundary must be presumed to contemplate that the Court will
seek to apply equitable principles in selecting criteria appropriate to
a common boundary. On this basis, it is, in my view, competent for the
parties by agreement to authorize the Court to fix a single boundary.

As noticed, Denmark however contends that an agreement is not neces-
sary to enable the Court to establish a single boundary. It submits that in
the Gulf of Maine case the basis on which the Chamber considered itself
competent to do so was the circumstance that the delimitation in fact
related to two areas, and not the fact that the Parties had agreed to request
such a delimitation. In its view, the 1958 “Convention, dealing with only
one dimension —- the shelf — could not govern a two dimensional delimi-
tation, i.e., shelf and superjacent waters” (CR 93/10, p. 20, 25 January
1993, Mr. Lehmann). By itself, that statement is true; the 1958 Conven-
tion, which applies only to the continental shelf, “could not govern a two-
dimensional delimitation”. But the Chamber could not establish a single
line unless it could competently make a selective use of the criteria nor-
mally applicable under international law to the delimitation of each zone,
retaining some and rejecting others so as to produce a common group of
criteria leading to a single line. Under general international law, if the
relevant factors pointed to separately located lines, a judicial body would
be bound to establish separately located lines; the mere fact that the case
before it involved the delimitation of two zones would not empower it to
fix congruent lines. A party could not by simply filing an application
relating to two areas unilaterally deprive the other party of its right to two
non-congruent lines where these were ordinarily required by interna-
tional law.

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In my view, when the Chamber said that “there is certainly no rule of
international law” preventing it from establishing a single line (CJ.
Reports 1984, p. 267, para. 27), what it meant was that international law
did not prevent it from acceding to the Parties’ request for a single line, not
that it could in any event fix a single line where separately located lines
might otherwise be required. In making a selective use of criteria that
would be otherwise applicable, rejecting some and retaining others, the
Chamber was derogating from the normal principles of international law.
Only the agreement of the Parties could empower it to derogate. Hence,
on its true construction, the Judgment of the Chamber is to be understood
as meaning that the source of the authority of the Chamber to fix a single
line where two separately located lines might otherwise have been
required under international law was the agreement of the Parties to ask
for a single line. I interpret the Guinea/Guinea-Bissau Arbitral Award as
resting on a tacit understanding that a single line was to be established
(Revue générale de droit international public, 1985, Vol. LXXXIX, p. 504,
para. 42).

On the first question, I am accordingly not persuaded by Denmark’s
submission that an agreement is not necessary.

As to the second question, concerning Denmark’s alternative sub-
mission that there is an agreement, there is obviously no agreement in this
case as there was in the Gulf of Maine case. Denmark, however, argues
that each Party, in its submission, is in fact asking for a single line in
respect of both the continental shelf and the fishery zone, and that this
concurrence in submissions amounts in law to an agreement to request the
Court to draw sucha line. Norway is asking for congruent lines but on two
important qualifying bases, first, that they should correspond with the
median line only, and, second, that this correspondence should result
from the operation of the criteria normally applicable at international law
to the delimitation of each maritime area considered separately. Norway
is not agreeable to any derogation from the normally applicable criteria so
as to produce two congruent lines if those criteria would otherwise pro-
duce two non-congruent ones.

Hence there is no agreement. It follows that the only way in which the
continental shelf and the fishery zone can have a single line (in the sense of
two congruent lines) is if congruence is the incidental result of the opera-
tion of the normally applicable principles of international law. But two
lines drawn independently for each area would coincide along their entire
lengths only exceptionally. The factor concerning the location of fish
stocks, relied on by the Court, may, in the circumstances of this particular
case, be relevant to the delimitation of the fishery zone; it is not relevant to
the delimitation of the continental shelf. Thus, I cannot say that I have
found the question of a single line to be without difficulty. The doubts

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which I have felt are not, however, sufficiently strong to prevent me from
adhering to the Court’s conclusion.

Part VI. THE JUDICIAL PROPRIETY OF DRAWING A DELIMITATION LINE

Norway submits that the Court should not undertake the drawing of a
delimitation line. The submission was not made on the basis of jurisdic-
tion, but it trenched sufficiently on this area to put one on enquiry as to the
Court’s competence, this being always a matter open to consideration.
I shall accordingly address myself to this issue in the first place.

(i) Jurisdiction

The question which I propose to examine is whether the competence to
determine the boundary is confided by international law exclusively to
the process of agreement by the parties, with the result that the Court can-
not determine it except on their joint request, and with the further conse-
quence that, where, as here, there is no joint request, the Court can at most
only provide guidelines to enable the parties themselves to determine the
boundary by an agreement to be negotiated by them on the basis of such
guidelines.

Without entering into details, I should first state that my understanding
of the positions taken by the Parties is that they accept that the Court is
competent to adjudge and declare what constitutes the boundary. The
issue between them relates to a different question, namely, whether the
Court’s Judgment should be limited to a descriptive statement of what
constitutes the boundary, or whether it should take the further form of
including the actual drawing of the line. Neither Party has asked for
guidelines on the basis of which negotiations will be undertaken with a
view to determining by agreement what constitutes the boundary. Any
negotiations visualized by Norway would be directed not to the question
what constitutes the boundary, but to the technical question what is the
specific line required to give expression to the Court’s own judgment as to
what constitutes the boundary.

The Parties having, in my view, accepted that the Court is competent to
determine what constitutes the boundary, is it nevertheless possible to say
that the Court lacks the necessary jurisdiction to do so?

On my reading of the record, after eight years of negotiations, not only
has there in fact been no agreement, but there has been a failure to reach
agreement.

Taking, first, the case of the continental shelf, what is the position where
there has been a failure to reach agreement? The failure to reach agree-

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ment means that the Parties have exhausted their own capacity to fix a
boundary consensually on any basis whatever. So there is a dispute. It is
not a dispute as to whether the Parties are under a duty to negotiate, for
they have already negotiated, albeit unsuccessfully. It is a dispute as to
what in fact is the boundary, there being no agreement as to what it is.

From this point onwards, it is necessary to read the 1958 Convention in
partnership with any available procedure for the peaceful settlement of
disputes. Theoretically, the failure of the Parties to determine the bound-
ary by agreement does not preclude them at a later stage from still having
recourse to agreement as a means of peaceful settlement of the dispute left
over by such failure. But now, apart from the question of its practical use-
fulness, agreement is only one method among other available methods of
settling the dispute.

The disputes settlement procedures of the 1982 Convention do not
apply, and I express no opinion one way or another as to what the position
might be if they did. Obviously, however, Article 36, paragraph 2, of the
Statute of the Court is an available procedure for the settlement of dis-
putes. Norway accepted that “it is Denmark’s undisputed right to avail
itself of the Court’s general jurisdiction under Article 36, paragraph 2, of
the Statute and the optional clause declarations” of the Parties made
thereunder (CR 93/5, p. 21, 15 January 1993, Mr. Haug). There can be no
doubt that a dispute relating to a maritime boundary is a legal dispute
relating to a question of international law within the meaning of that pro-
vision. Referring to the machinery of this provision, Norway in fact recog-
nized

“that it lies within the scope and function of the Court to perform a
delimitation of the continental shelf between Denmark and Norway,
as well as a delimitation of the fishery zones between the same Par-
ties, in the area between Jan Mayen and Greenland” (CR 93/11,
p. 27, 27 January 1993, Mr. Haug).

Denmark, therefore, has an absolute right to invoke the Court’s jurisdic-
tion under that provision.

Bearing in mind that the dispute is one as to what is the boundary, the
Court’s response to it can only be to say what is the boundary. Depending
on the adequacy of the material, the Court may be able to answer the ques-
tion with more or less particularity. But I am unable to see how any proper
sense of its judicial mission can compel the Court to avoid a direct
response to the question submitted as to what is the boundary and to con-
fine itself instead to giving guidance to the parties, which they have not
sought, on what are the bases on which they should negotiate for the deter-
mination by agreement of that question. It would be especially beside the
point, and somewhat gratuitous, for the Court to give such guidance
where the parties have not committed themselves to negotiate on the basis

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of legal principles (as in the North Sea cases), for they are always at liberty
to agree a boundary on the basis of simple convenience or expediency.

Thus the failure to reach agreement bequeathed a legal dispute as to
what constitutes the boundary. That dispute is susceptible of judicial
settlement via unilateral application under Article 36, paragraph 2, of the
Statute of the Court.

Assuming, however, that a consensual reference to the Court is
required, the real question is whether both Parties have consensually
established a settlement procedure relating to disputes and, if so, whether
such disputes include a dispute as to the boundary of the continental shelf.
This undoubtedly is the case under Article 36, paragraph 2, of the Statute.
Under that provision, the Parties have consensually established a scheme
for settlement of disputes which include the instant dispute as one which
raises a question of international law. Where such a dispute has been uni-
laterally referred to the Court under this consensually established pro-
cedure, it is not open to the Respondent to complain that the proceedings
were instituted without its consent. There is either consent or there
is not. If none, there is no jurisdiction. But Norway accepts that there is
jurisdiction. Hence an argument based on the unilateral nature of the
Application collides with the fact that, in a fundamental sense, that unilat-
eral Application is itself ultimately brought with the consent of Norway.

In my view, the foregoing approach would apply equally to the delimi-
tation of the fishery zone in accordance with customary international law.
There being a failure of the Parties to determine the boundary by agree-
ment, there is a dispute as to what is the boundary. This being so, Denmark
is entitled to invoke the machinery of Article 36, paragraph 2, of the Sta-
tute for the settlement of the dispute. And, again, the dispute being one as
to what constitutes the boundary, the Court’s response must be a response
to that question, not to a question, unasked, as to what are the principles
on which the Parties should negotiate for the settlement of the dispute.

(ii) Judicial Propriety and Restraint

The Court has not drawn a delimitation line. Thus, the substance of the
Norwegian contention has prevailed. But the decision of the Court rests
on the view that the drawing of a line by it could overlook possible defi-
ciencies in the evidence, in the state in which it stands, concerning the
technical aspects of such an operation. What I should like to make clear is
that I do not understand the decision to be upholding Norway’s conten-
tion in so far as this rests on the proposition that the mere non-consent of

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Norway operates as a factor to prevent the Court, on grounds of judicial
propriety and restraint, from drawing a line.

Norway carefully distinguished between jurisdiction and admissibility,
on the one hand, and judicial propriety and restraint, on the other. How-
ever, it submitted that the

“Court may usefully draw guidance from the analogous analyses that
have been performed in cases such as Tunisia/Libya or El Salvador/
Honduras, where the same issues were dealt with in the narrower con-
text of interpreting the consent of parties, and were therefore
properly viewed as being directly related to the jurisdiction of the
Court, or Chamber, rather than to the discretion and restraint that the
Court may choose to bring to bear in the exercise of its judicial
powers and competence in this difficult area” (CR 93/9, p. 53,21 Jan-
uary 1993, Mr. Keith Highet).

That Norway’s interpretation of those two cases is correct is shown by the
Judgments in the cases (J.C.J. Reports 1982, pp. 38-40, paras. 25-30; and
LC.J. Reports 1992, pp. 582-585, paras. 372-378. And see I.C.J. Pleadings,
Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Vol. IV, pp. 440-441,
and Vol. V, pp. 50, 214-216, 282-285, 353). And to those two cases, I think
there could be added the Libya/Malta case (I.C.J. Reports 1985, pp. 22-24,
paras. 18-19). They all bear on the question of competence, and do not, in
my view, provide a safe analogy on the question of judicial propriety and
restraint.

I understood counsel for Norway to be speaking of judicial restraint not
in the kind of constitutional sense in which the concept has developed in
certain municipal jurisdictions in response to the need to preserve a mar-
gin of appreciation in the exercise by each repository of State power of its
allotted responsibilities!. The appeal was to judicial propriety and
restraint not as limiting factors imposed by the relations between the
elements of an institutionalized system within which a court may be func-
tioning, but as factors which intrinsically influence the exercise of this
Court’s judicial function.

It was in this way that I understood counsel when he referred the Court
to “the restraint articulated on the exercise of its judicial functions in
the case concerning the Northern Cameroons (I.C.J. Reports 1963, p. 3)”

! See Corpus Juris Secundum, Vol. 16, pp. 563 ff., para. 176, concerning judicial atti-
tudes to political questions in the United States. And see Justice Stone’s dissent in
United States v. Butler (1926), 297 US 1 (78),

“while unconstitutional exercise of power by the executive and legislative
branches of the government is subject to judicial restraint, the only check upon our
own exercise of power is our own sense of self-restraint”.

As to judicial activism and judicial self-restraint in England, see S. A. de Smith, Judicial
Review of Administrative Action, 4th ed., pp. 31 ff.

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(CR 93/9, p. 53, 21 January 1993, Mr. Keith Highet). But there the Court
was “relegated to an issue remote from reality” (1.C.J. Reports 1963, p. 33).
Hence, as it remarked:

“The function of the Court is to state the law, but it may pronounce
judgment only in connection with concrete cases where there exists at
the time of the adjudication an actual controversy involving a con-
flict of legal interests between the parties. The Court’s judgment must
have some practical consequence in the sense that it can affect exist-
ing legal rights or obligations of the parties, thus removing uncer-
tainty from their legal relations. No judgment on the merits in this
case could satisfy these essentials of the judicial function.” (Ibid.
pp. 33-34.)

In that case there was really no triable issue the determination of which
could serve any useful purpose. To decide the case would accordingly
have been to undertake an exercise outside the judicial mission. In the
instant case, there is, by contrast, a triable issue relating to a legal dispute
as to what is the delimitation line in the continental shelf and fishery zone
lying between Greenland and Jan Mayen, and the determination of that
concrete issue would unquestionably serve a useful purpose.

Counsel also referred the Court to Sir Hersch Lauterpacht, writing

“in his book, The Development of International Law by the Interna-
tional Court (1982, rev. ed., Part Two, Chap. 5, pp. 75-90), under the
several and associated rubrics of ‘judicial caution’ and ‘judicial
restraint’, as distinguished, of course, from ‘judicial hesitation’ or
‘judicial indecision’” (CR 93/9, p. 53, 21 January 1993).

The exercise of inherently discretionary judicial powers apart, these
rubrics encompass, inter alia, the need for caution in dealing with hypo-
thetical or academic issues; questions as to how sparingly or fully the
Court should give reasons for decision; and the question how far, if at all,
the Court should deal with issues which, though arising, do not require
determination in the light of the course taken by the reasoning relating to
the decision finally taken. But I cannot think that these and other asso-
ciated categories cover a case in which the real reason why it is asserted
that the Court should as a matter of judicial propriety and restraint
decline to exercise its admitted jurisdiction is that the Respondent has not
been willing to co-operate in the evolution of some particular aspect of the
litigation as fully as it might have done had the case been brought with its
specific consent rather than by unilateral application.

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In evaluating the submission that, as a matter of judicial propriety and
restraint, the Court should not perform a delimitation in the absence of
the consent of both parties to the Court doing so, it is helpful to consider
the relationship between a statement of principles applicable to a par-
ticular delimitation and the carrying out of the delimitation itself.

In the Libya/Malta case, the Parties, by their Special Agreement, asked
the Court to state the principles and rules applicable to the determination
of their respective areas of the continental shelf, and also to indicate

“how in practice such principles and rules can be applied by the two
Parties in the particular case in order that they may without difficulty
delimit such areas by an agreement . . .” (J.C.J. Reports 1985, p. 16).

The Special Agreement did not request the Court to draw a line, and the
Court did not. Even so, the case illustrates the close, almost integral, rela-
tionship which exists between a statement of principles governing a deli-
mitation and the actual drawing of a line. Commenting on the question
how far the Court could go in indicating how in practice the relevant
principles and rules could “be applied by the two Parties in order that they
may without difficulty delimit such areas by an agreement”, the Court
said:
“Whether the Court should indicate an actual delimitation line
will in some degree depend upon the method or methods found
applicable.” (Ibid., p. 24, para. 19. See also ibid., p. 23, para. 18.)

Even though the Special Agreement had reserved to the Parties the func-
tion of drawing the line, the Court was prepared to “indicate an actual
delimitation line” if it felt that, without doing so, it could not carry out its
part of the task. So the relationship between a statement of delimitation
principles and the drawing of a line expressive of the application of those
principles can be close (see, also, with respect to Tunisia/Libya, the com-
ments in Romualdo Bermejo, “Les principes équitables et les délimita-
tions des zones maritimes : Analyse des affaires Tunisie/Jamahiriya arabe
libyenne et du Golfe du Maine”, Hague Yearbook of International Law,
1988, Vol. 1, p. 67).

That the drawing of a line is, indeed, an integral part of any delimitation
exercise is apparent from the Court’s remark in 1969 that

“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” (North Sea, I-C.J. Reports 1969, p. 22, para. 20;
emphasis added).

So, too, in the Aegean Sea Continental Shelf case. In its Application
Greece requested

“the Court to adjudge and declare... what is the course of the bound-

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208 MARITIME DELIMITATION (SEP. OP. SHAHABUDDEEN)

ary (or boundaries) between the portions of the continental shelf
appertaining to Greece and Turkey in the Aegean Sea .. .” (C.J.
Reports 1978, p. 6, para. 12).

The Court said:

“It is therefore necessary to establish the boundary or boundaries
between neighbouring States, that is to say, to draw the exact line or
lines where the extension in space of the sovereign powers and rights
of Greece meets those of Turkey.” (Jbid., p.35, para. 85.)

Thus, although denying jurisdiction, the Court had no hesitation in hold-
ing that the resolution of a continental shelf boundary dispute necessarily
involved the drawing of “the exact line or lines” of delimitation.

In the case of a terrestrial boundary dispute, as where a watershed line
is concerned, one accepts that the Court cannot take the “place of a deli-
mitation commission”, still less that it can mark “a new frontier line on the
ground” (Temple of Preah Vihear, I.C.J. Reports 1962, p. 68, Judge Moreno
Quintana, dissenting). In such a case —

“Once the Court has indicated what it considers to be the correct
line of the watershed, it will be for the Parties to determine how that
line is to be given expression on the ground. The latter task is of a
technical nature, and not within the judicial field which belongs to
the Court.” (Jbid., p. 69.)

But in the instant case no physical demarcation in the relevant areas is
either visualized or required.

It is conceivable that a dispute could be presented to the Court as to the
accuracy of an existing line, including a baseline. The normal way of
resolving such a dispute would be for the Court not merely to pronounce
upon “definitions, principles or rules”, but to decide on the validity or
otherwise of the specific method or line challenged in the case before it.
That was the position in the Fisheries case (United Kingdom v. Norway) in
which the Application was in fact made unilaterally under Article 36,
paragraph 2, of the Statute of the Court (C.J. Reports 1951, pp. 118, 126
and 143). If the Court can properly do that in the case of a baseline, it
should be equally proper for it to draw a delimitation line where it is
necessary to do this in order to express its decision definitively on the con-
crete dispute before it. The drawing of a line is merely one way of express-
ing the decision reached with a view to achieving the kind of stability
which it should be the object of a boundary decision to produce.

No doubt, as a general matter, in the absence of co-operation based on
consent, there could be evidential and other difficulties (see generally,
in relation to advisory proceedings, the Eastern Carelia case, P.C.IJ.,
Series B, No. 5, p. 28). But the absence of such co-operation does not

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necessarily disable the Court from deciding. Where the relevant material
is before the Court, it would seem to me that a litigating party, as a party to
the Statute, has a right to expect, and indeed to require, the Court to exer-
cise its jurisdiction under the Statute. The existence of this duty has been
noticed by the Court itself. In 1984 it observed that, barring circumstances
which do not apply here, “it must be open to the Court, and indeed its
duty, to give the fullest decision it may in the circumstances of each case”
(Continental Shelf (Libyan Arab Jamahiriya/Malta), Application for Per-
mission to Intervene, I.C.J. Reports 1984, p. 25, para. 40). In 1985 it added,
“The Court must not exceed the jurisdiction conferred upon it by the Par-
ties, but it must also exercise that jurisdiction to its full extent” (Libya/
Malta, I.C.J. Reports 1985, p. 23, para. 19. And see Frontier Dispute, I.C.J.
Reports 1986, p. 577, para. 45). As it was succinctly put by Judge
Moreno Quintana, “The Court cannot refuse to discharge its judicial
task” (The Temple of Preah Vihear, I.C.J. Reports 1962, p. 68, dissenting
opinion).

I do not see that the thrust of these purposeful statements can be offset
by the stress which counsel has placed on the role assigned to consent in
delimitation matters (CR 93/9, p. 50, 21 January 1993, Mr. Highet). That
role is clearly important. But it is just as clear that, in the absence of agree-
ment, any dispute as to what is the delimitation line is a dispute cognizable
under Article 36, paragraph 2, of the Statute and, in a properly constituted
case, such as this, must be fully decided by the Court thereunder.

It is useful to bear in mind that there are two ways of moving the Court.
One is by way of proceedings instituted pursuant to an agreement (of one
kind or another) under Article 36, paragraph 1, of the Statute of the Court.
The other is by way of proceedings instituted pursuant to the optional
clause provisions of Article 36, paragraph 2, of the Statute. As between the
same parties, both methods may well be applicable (Electricity Company
of Sofia and Bulgaria, P.C.I.J., Series A/B, No. 77, p. 76). The availability
of one method is not necessarily inconsistent with the concurrent avail-
ability of the other. It may with even greater justice be held that it cannot
be right to use a theoretical but unavailable possibility of recourse to one
method to limit the exercise of an existing right of recourse to the other.
That this is the substance of the issue arising may be seen from Norway’s
submission that —

“Delimitation is inherently unsuitable for cases brought by unilat-
eral application unless there is some form of agreement on the part of
the respondent as to the role and powers of the Court.” (CR 93/9,
p. 81, 21 January 1993, Mr. Keith Highet.)

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Norway admits that jurisdiction exists under Article 36, paragraph 2, of
the Statute. Yet it seems to be saying that the case could only be brought
under that provision if “there is some form of agreement on the part of the
respondent as to the role and powers of the Court”. But, if there is such
agreement, the case might as well be brought under Article 36, para-
graph 1, of the Statute. Norway’s submission, if correct, would represent a
restriction on the exercise of the Court’s compulsory jurisdiction; it
would operate to impose a hidden proviso to Article 36, paragraph 2, of
the Statute, the effect of which would in practice be to exclude some cases
from this provision and to limit the right to bring proceedings in respect of
them to Article 36, paragraph 1, only. The gravity of this consequence is
not mitigated by the fact that the argument has been made on the basis of
judicial propriety and restraint.

The Court is always mindful of the consensual basis of its jurisdiction.
But there is a limit to contentions based explicitly or implicitly on volun-
tarism. The Statute and the Rules prescribe a number of conditions for the
exercise of the Court’s power to decide disputes on a consensual basis.
But once the power comes into play, I cannot see that any further consent
is required for its effectual exercise. There is a conceivable exception
where a case is brought pursuant to an agreement by the very terms of
which some further consent is required before a particular issue is consid-
ered by the Court (see Free Zones of Upper Savoy and the District of Gex,
P.CIJ. Series A/B, No. 46, p. 165). But that is not the situation here.

In this case, Counsel for Norway himself expected that it would have
been open to Denmark to say that “Norway cannot both be in the liti-
gation and out of the case . . .” (CR 93/9, p. 78, 21 January 1993,
Mr. Keith Highet). More particularly, as he also correctly remarked,
“After all, it is a litigation that we are conducting, not a conciliation, or
mediation procedure” (ibid., p. 79). But precisely because it is a litiga-
tion — a litigation duly instituted — the Court cannot act on extraneous
considerations. Jurisdiction having been admitted, the fact that the case
was not brought with the agreement of the Respondent is, by itself, not
relevant to the manner in which the Court should approach the issue
which it presents and express its decision thereon. Accordingly, had the
Court judged that the available material was sufficient to enable it to draw
a line, it could, in my opinion, properly have done so notwithstanding the
non-consent of Norway to that particular step being taken.

(Signed) Mohamed SHAHABUDDEEN.

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