SEPARATE OPINION OF JUDGE FOUAD AMMOUN

{Translation
1. The Legal Basis and the Definition of the Continental Shelf.

*

Since the Court was called upon, under the Special Agreements by
the notification of which it was seised, to state the principles and rules
applicable to the disputes between the Federal Republic of Germany
and the Kingdoms of Denmark and the Netherlands as to the delimita-
tion of the areas of the continental shelf which makes up the whole of
the North Sea which appertain to each of these countries, the Court had
to establish in the first place the actual concept of the continental shelf
the delimitation of which was in issue.

Even up to the time of the Conference on the Law of the Sea held at
Geneva in 1958, this concept was still subject to controversy '; and even
last year, in 1968, in the course of the deliberations of the Ad Hoc
Committee set up by the United Nations to study the peaceful uses of
the seabed and the ocean floor, the limits, if not the definition, of the
continental shelf provided material for discussion by the representatives
of States, who apparently did not find the definition either sufficiently
precise or sufficiently comprehensive 2. What is more, in the course of
the hearings in the present cases, the representative of the Federal
Republic of Germany stated that “it is not possible to speak of the
continental shelf concept as an already fixed or completed concept >”.
This observation, coming from one of the Parties, is fraught with con-
sequences, in particular for the time when the Parties, on the basis of
the Court's Judgment, come to exercise their rights over the area of
continental shelf which has been recognized as appertaining to each of
them. It will be sufficient in this connection to mention the differences
of opinion, to which I shall refer later, as to the extension of the sover-
eignty of the coastal State over the continental shelf * and as to its outer
limits °.

1 See statements to the Conference made by the representatives of France,
Greece, and the Federal Republic of Germany (Official Records, Vol. VI, p. 1 and
pp. 5-7).

2 Report of the Ad Hoc Committee to the General Assembly of the United
Nations, 1968.
3 Address of 5 November 1968.
+ Infra, para. 17.
5 Infra, para. 7.

10]
CONTINENTAL SHELF (SEP. OP. AMMOUN) 101

In fact the Court, not having faced the question directly as I have
suggested, has been unable to avoid discussing a number of its aspects,
and coming back to the point throughout its reasoning. The Court has
in fact had to consider, with a view to the delimitation which is the
subject of the present cases, whether the continental shelf is the natural
prolongation of national territory under the sea, thus justifying the
delimitation of the areas naturally appertaining to each of the coastal
States and excluding the contention for a sharing out among such States;
or whether it is dependent on the idea of contiguity, of which the corollary
would be the equidistance rule, to be compulsorily applied to the delimi-
tation in question '; or whether again delimitation on the equidistance
basis is inherent in the concept of the continental shelf, or follows
implicitly from the exclusive nature of the rights recognized as belonging
to the coastal States !.

Finally tt was not without interest to ascertain whether the continental
shelf has acquired the status of a rule of law by virtue of the said Con-
vention, or as a result of custom, since its legal régime could differ
according to which was the case.

All these are questions which should have been dealt with, in my
opinion, from the very beginning, in order to clarify the reasoning and
so as to leave no lurking uncertainty as to the scope and significance of
the Judgment.

2. At allevents there was no ground for accepting the opinion expressed
by the Kingdom of the Netherlands, that the Court is not invited to
pronounce on the question of what part of the bed of the sea and of
the subsoil of the high seas should be considered, from the legal point
of view, as constituting the continental shelf. It must be borne in mind
that the integrity of the high seas, the freedom of which is hallowed by
a genera] custom, is in issue, and all States, not merely the Parties to
the disputes, are directly interested therein.

It goes without saying that the Court is bound by the Special Agree-
ments just as much as the Parties. The quotations taken from the Judg-
ments concerning the cases of the Lotus and of the Territorial Jurisdiction
of the International Commission of the River Oder are relevant in this
connection. It is nonetheless the case that the Court has the right, when
appropriate, to interpret the special agreement by which it has become
seised of a case, as it has to interpret any convention, following a settled
line of decisions. And however restrictive such interpretation should
be—in view of the sovereignty of Statcs and the optional nature of the
Court's jurisdiction-—it is nonetheless abundantly clear that the Parties
could not have asked the Court to state principles and rules which could
have no application in law. A convention cannot be isolated from its
legal context. which in the present case is the problem of the continental

1 Infra, para. 15.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 102

shelf. If, for the sake of argument, this were not recognized in law,
there could be no dispute as to its delimitation, and in the absence of a
dispute there would be no reason to define principles and rules to resolve
it. It is appropriate to recall the rule of interpretation stated by this
Court in its Advisory Opinion of 3 March 1950 on the subject of the
Competence of the General Assembly for the Admission of a State to the
United Nations, to the effect that the text should be recognized as authori-
tative, unless its terms are ambiguous or lead to an unreasonable result;
for it would not be reasonable to abide closely by the letter of the Special
Agreements and not to elucidate the whole tenor thereof or any implicit
elements.

*
* *

3, When this has been said, the question with which the Court was
faced first of all was whether there exists a general international con-
vention, within the meaning of Article 38, paragraph 1 (a), of its Statute,
which has modified the principle of the freedom of the high seas and
sanctioned the concept of the continental shelf.

It should be sufficient to observe that the Geneva Convention of
29 April 1958 on the Continental Shelf has up to the present been
ratified by only 39 States, out of a total of about 140 making up the
international community. The Convention remains, by analogy with
internal law of the nations, res inter alios acta, and could not bring
about a modification erga omnes of the principle of the high seas, or
limit the scope o1 legal consequences thereof. This interpretation, it
should be added, indisputably applies to norm-creating treaties as well
as to contract-treaties, particularly since the falling into disuse of the
privilege which a limited number of Powers used to claim to legislate
in the name of all the nations of the world, whether colonized o1 in-
dependent.

It is true that, in order to claim sovereign or exclusive rights over the
continental shelf bordering on their respective territorial seas, the Parties
rely on the provisions of Articles 1 and 2 of the Convention on the
Continental Shelf mentioned above. The Kingdom of the Netherlands
and the Kingdom of Denmark are obviously bound by the stipulations
of that Convention. The Federal Republic of Germany, which has not
ratified it, is nonetheless bound, by virtue of the principle of good faith
in international relations, as is every State as a result of a unilateral
declaration ', by the statements made in the Memorial, affirmed in the
course of the speeches of 4 November 1968, in which the Federal Republic
declared that the definition of the continental shelf and the rights of the
coastal States as determined by Articles | and 2 before referred to are
generally recognized: it explained that it “recognizes that the submarine

! As to the effects of the unilateral declaration, see infra, para. 21.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 103

areas of the North Sea constitute a continental shelf over which the
coastal States are entitled to exercise the rights defined in Article 2 of
the Convention ©.

Although the Parties to the case are bound, cach with regard to the
other, by the obligations which they have assumed in the ways which
have been mentioned, it is nonetheless the case that the definition and
the rights mentioned above cannot be relied on, solely on the ground of
the Convention mentioned above, as against States which have not
ratified it, or have nat declared that they accept its terms.

Consequently the affirmation is justified that the freedom of the high
seas, settled by virtue of a custom of international! law which is universally
accepted, should be respected in principle and as to its Consequences,
and. in the absence of a convention of universal scope cannot be modified
or limited except by a custom backed by a general consensus, or in the
last analysis by a general principle of law.

It is now as well to enquire whether a modification of the principle
of the freedom of the high seas has not in fact taken place by virtue of
a new customary rule of universal scope. This will be the subject of the
following question.

*
* *

4. Failing a general convention, as specified above, is there an inter-
national custom, as contemplated in paragraph | (h) of Article 38 of
the Statute of the Court, which has modified the principle of the freedom
of the high seas and sanctioned the concept of the continental shelf?

#

Whereas the Geneva Convention of 29 April 1958 on the High Seas
codifies certain rules of customary international law, and in particular
the freedom of the high seas outside territorial waters, the question
arises whether this is also the case with the Geneva Convention of the
same date on the Continental Shelf; and if not, has a custom been formed
subsequently which, modifying the custom establishing the freedom of
the high seas, confers exclusive rights over stretches of these or over
certain of their component parts?

It should of course be observed that the Convention on the High Seas
mentions, in its preamble, the intention of the parties to “codify the
rules of international law relating to the high seas”; whereas the Con-
vention on the Continental Shelf says nothing of that kind. Furthermore,
Article 1 of the latter Convention, when giving a definition of the conti-
nental shelf, limits it to the purposes of the articles of that Convention.
It would not however be possible to use these considerations as an

1 Memorial, para. 8.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 104

argument for stating that the concept of the continental shelf as opposed
to that of the freedom of the high seas, is not yet accepted in customary
international law. Proof of the formation of custom is not to be deduced
from statements in the text of a convention; it is in the practice of
States that it must be sought. Indeed, custom, which Article 38, para-
graph | (>), of the Statute of the Court takes as evidence of a general
practice accepted as law, or which the teaching of publicists, following
Gentilis !, interprets rather as a practice capable of demonstrating its
existence, requires the consent, express or tacit, of the generality of
States, as was taught by Grotius with reference to the customary law
of nations of the period. It is therefore a question of enquiring whether
such a practice is observed, not indeed unanimously, but, as is quite
clear from the above-mentioned Article, by the generality of States with
actual consciousness of submitting themselves to a legal obligation.

*

5. The facts which constitute the custom in question are to be found
in a series of acts, internal or international, showing an intention to
adapt the law of nations to social and economic evolution and to the
progress of knowledge; this evolution and this progress have given
impetus to the exploitation of the riches of the soil and subsoil of the
sea at ever-increasing depths, and to the use of new means of communi-
cation and transport which develop unceasingly, and to the extension,
sometimes ill-considered, of deep-sea fishing, which has its dangers for
the conservation of marine species and, in general, of the biological
resources which have become more and more necessary for the feeding
of rapidly growing populations.

Such are the declaration of the Russian Imperial Government of
29 September 1916; the bilateral treaty between the United Kingdom and
Venezuela of 26 February 1942; the Proclamation and Executive Order
of President Truman of 28 September 1945; the subsequent chain of
proclamations, those of Mexico in 1945 and 1949; of Cuba in 1945;
of Argentina and Panama in 1946; of Peru, Chile, Ecuador and Nicaragua
in 1947; of Costa Rica, of the United Kingdom on behalf of Jamaica
and the Bahamas. and of Iceland in 1948; of British Honduras. Guate-
mala, Saudi Arabia, Abu Dhabi, Bahrain, Kuwait, Qatar, Ajam, Dubai,
Sharjah, Ras al Khaimah, Umm al Qaiwain, and the Philippines in 1949;
Brazil, El Salvador, Honduras, Nicaragua, Pakistan, and the United
Kingdom on behalf of the Falkland Isles in 1950: of South Korea and
Israel in 1952; of Australia in 1953; of Iran in 1955: of Portugal in 1956;
of Iraq, Burma and Ceylon in 1957: and finally those of the States
bordering on the North Sea, since natural gas and petroleum were

1 A. Gentilis: The law of nations is “*... the product of prolonged agreement
between peoples, established by usage, which itself is revealed by history”.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 105

discovered there, namely: Royal Proclamation of Norway of 31 May
1963; Royal Decree of Denmark of 7 June 1963: Proclamation of the
Federal Republic of Germany of 20 January 1964; Orders in Council
of the United Kingdom of 15 April 1964 and 3 August 1965; Netherlands
Law of 23 September 1965.

There should be added to these States some 30 others which, while
not being numbered among the authors of unilateral declarations, have
signed and ratified, or merely signed, the Geneva Convention of 29 April
1958 on the Continental Shelf.

For if the said Convention, ratified up to the present day by 39 States,
is not yet such as to modify by agreement the international custom
concerning the high seas, it nonetheless constitutes, by the legal act of
its ratification, and by the deliberate legal fact of its mere signature, a
group of precedents which contribute, together with State practice, judi-
cial and arbitral decisions. resolutions of legal conterences and of inter-
national bodies, as well as the positions there taken up, to the elaboration
of the material element of custom.

6. Not so long ago, an eminent jurist ! could still write that the pro-
clamations of States do not constitute more than a recital of facts in
which it is difficult to “trace an ethic widely accepted as constituting
law, that is to say, embodying a concept of general interest or of equity”.
He saw therein rather the contrary, discerning, of course, “in the back-
ground, pretexts or anxieties as to the needs of humanity’, but consider-
ing as by far the most dominant “‘a concern for individual interests and,
at the most, for national! interest, which in the law of nations is no more
than an individual interest”.

The representatives of certain countries echoed this doctrinal peint of
view at the Geneva Conference on the Law of the Sea in 1958 2.

And in fact, up to the eve of that Conference, it could be claimed that
the doctrine of the continental shelf was still no more than a custom in
the process of formation.

Today it must be admitted that these encroachments on the high seas,
these derogations from the freedom thereof, beginning with the Truman
Proclamation of 28 September 1945, are the expression of new needs of
humanity. From this it may be deduced that just as reasons of an economic
nature concerning navigation and fishing justified the freedom of the
high seas, reasons of the same nature which are no less imperative,
concerning the production of new resources with a rich future, and their
conservation and their equitable division between nations, may hence-
forward justify the limitation of that freedom. Thus the American Pro-

' G. Scelle, Plateau continental et droit international. 1955, pp. 35 and 36.
” Supra, note 1, p. 100.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 106

clamation, which deliberately cut the Gordian knot of the question
whether the immense resources discovered under the high seas would
remain, on the model of the high seas themselves, at the disposal of the
international community, or would become the property of the coastal
States, set the fashion, and was followed by a series of similar documents
and by the support of legal writers, culminating in the Geneva Conven-
tion of 29 April 1958 on the Continental Shelf. The proposal of the
Federal Republic of Germany for the exploitation of submarine riches
for the benefit of the international community, which adopted an idea
of P. Fauchille, received no support at the Conference, a number of
countries being anxious to reserve their rights over the continental shelf
or the epicontinental platform prolonging their coasts, and certain of
them fearing in addition the enterprises of the industrialized nations,
which were better equipped for a de facto monopoly of this exploitation.

This aggregate body of elements, including the legal positions taken
up by the representatives of the majority of the countries at the Geneva
Conference, even by those who expressed reservations !, amounts here
and now to a general consensus constituting an international custom
sanctioning the concept of the continental shelf, which permits the Parties
to lay claim to delimitation between them of the areas of the North Sea
continenta! shelf appertaining to them, for the exercise of exclusive rights
of exploration and exploitation of the natural resources secreted in the
bed and subsoil of the sea.

*
* *

7. If the concept of the continental shelf has thus been definitively
recognized, there remains a related question, namely the extent of the
continental shelf or its outer limit. This is a question which is subject
to controversy, and which caused the representative of the Federal
Republic of Germany to say: ‘a crucial question has not yet been settled
—what are the outer limits of the continental shelf towards the open
sea *?”

The interest of the question lies in the fact that a judgment stating the
principles and rules applicable to the delimitation of the continental
shelf should not allow it to be understood that the Court has accepted,
without examination, the concept of the continental shelf.

It is possible to enquire whether the delimitation of the continental
shelf appearing in Article 1 of the Convention has alone passed into
customary law, or whether the latter does not imply—as in the case of
historic waters-—other outer limits of the area of the high seas subjected
to the jurisdiction of the coastal State under the title of continental
shelf or of epicontinental platform, or under some other denomination.

1 Supra, note 1, p. 100.
2 Address of 5 November 1968.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 107

*

8. It will in fact be observed that some of the acts mentioned above,
forming part of State practice, had remained open to challenge as a
result of the extension which those acts gave to the appropriation of the
high seas. In particular, in the most western hemisphere, such were the
laws, proclamations or decrees issued in 1946 by Argentina, in 1947 by
Peru, Chile and Ecuador, in 1948 by Costa Rica, and in 1950 by Honduras
and El Salvador; these acts extended the bounds of the continental
shelf adjacent to the coasts of these States beyond the break in the
slope occurring at a depth between 130 ard about 550 metres ', or, in
the absence of a submarine prolongation of territory in the form of a
shelf, replaced this with an area of the high seas, the continental slope
or the epicontinental platform, limited by some of these acts to a minimum
of 200 miles from the coast ?, and left by others without any limits
whatever.

It is relevant to stress, in this connection, the guiding role played by
Peru—a country which is almost without a continental shelf—as a result
of the above-mentioned decisions of the United States, Mexico and
Argentina, the last two of which already claimed, in addition to the
continental shelf, exclusive areas of the epicontinental platform. How is
it, it was emphasized in Peru, that the only States which can take advan-
tage of a natural phenomenon which permits them to annex immense
areas of subsoil and of the high seas, can profit from them exclusively,
and can condemn those who are handicapped by geographical configura-
tions to stand idly by in face of the immense riches secreted by their
adjacent waters, and that to the profit of capitalist enterprises better
endowed than their own and powerfully protected *. The immense riches
disputed between the maritime Powers and Peru were the incalculable
piscatory riches secreted by its epicontinental platform, which it was
determined to preserve in order that the production of guano should not
be prejudiced, in the interest of the national economy, which incidentally
coincided with the interest of agricultural production throughout the
world *.

Thus a common declaration by Peru, Chile and Ecuador proceeded
to reinforce this claim in the following terms:

! Geneva Conference, Preparatory documents, Vol. 1, pp. 39-40.

- The 200-mile limit is well within the extreme width of the continental shelf
which in certain regions is as much as 1,300 kilometres.

# Quoted by G. Scelle, ap. cit., p. 46.

+ Cf. M. W. Mouton, The Continental Shelf. p. 80, who states as follows: ‘Peru
has an extra reason, because the fish form the food for guano birds, which are an
economic asset to the country.”

The decisions of municipal courts of Peru have confirmed this view: judgment of
the Tribunal of Piata of 26 November 1954, in the case of the ships, Olvmpic,
Victor and others.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 108

“Governments are bound to ensure for their peoples access to
necessary food supplies and to furnish them with the means of
developing their economy. It is therefore the duty of each Govein-
ment to ensure the conservation and protection of its natural re-
sources and to regulate the use thereof to the greatest possible
advantage of its country. Hence it is likewise the duty of each
Government to prevent the said resources from being used outside
the area of its jurisdiction so as to endanger their existence, integrity
and conservation to the prejudice of peoples so situated geographi-
cally that their seas are irreplaceable sources of essential food and
economic materials. For the foregoing reasons the Governments of
Chile, Ecuador and Peru, being resolved to preserve for and make
available to their respective peoples the natura! resources of the
areas adjacent to their coasts, ... declare as follows:

Owing to the geological and biological factors affecting the exis-
tence, conservation and development of the marine fauna and flora,
... the former extent of the territorial sea and contiguous zone is
insufficient ... [for] those resources, to which the coastal countries
are entitled ... [They] therefore proclaim as a principle of their
international maritime policy that each of them possesses sole
sovereignty and jurisdiction over the area of sea adjacent to the
coast of its own country and extending not Jess than 200 nautical
miles from the said coast.

Their sole jurisdiction and sovereignty over the zone thus des-
cribed includes sole sovereignty and jurisdiction over the sea floor
and subsoil thereof...” ‘English text by the United Nations Secre-
tariat, }

In succession, Costa Rica, El Salvador and Honduras adopted this
concept, against which the maritime Powers did not fail to protest !.
But their opposition did not succeed in muting the interventions of the
representatives of the States at the Geneva Conference, any more than
it muted the voices of eminent jurists who pointed out, particularly on
the International Law Commission, the injustice which would be suffered
by countries which did not possess a continental shelf, or only possessed

! United States Protest Notes of 2 July 1948 to Peru, Chile and Argentina, of
12 December 1950 to El Salvador and 7 June 1951 to Ecuador; United Kingdom
Notes of 6 February 1948 to Peru and Chile, of 9 February 1950 to Costa Rica, of
12 February 1950 to El Salvador, of 23 Apri! 1951 to Honduras and of 14 September
to Ecuador. France, which was asked by the United Kingdom to make its position
known, in its reply of 7 April 1951 gave its support to the positions taken up by the
two other great marilime Powers.

However, the American Professor L. Henkin, concurring with the views of the
Latin American countries, writes: ‘The United States ... might consider also a
declaration, alone or with others, that under the Convention (of Geneva) it claims a
shelf out to the 600, 1,000, 2,000 or even 3,000 metres isobath, or out to 50, 100 or
more miles from shore.” (The Mineral Resources of the Seas, pp. 38-39).

Professor Henkin reports furthermore that the United States has granted permits

109
CONTINENTAL SHELF (SEP. OP. AMMOUN) 109

one of a very small extent‘. It is in fact necessary to consider whether
these statements of position, particularly those of Peru, Chile and Ecua-
dor, were not purely declaratory of an already established custom, and
whether the objections of the maritime Powers were not in consequence
belated.

In any event, the position of these States has been reinforced by two
fresh facts.

In the first place, there is the Italian-Yugoslav Agreement of 8 January
1968 delimiting the whole breadth of the Adriatic Sea between the two
parties *. It is of course there stated that the delimitation deals with
the continental shelf; but it is unnecessary to concentrate on the wording
when the facts are clear. The depths of the area delimited, on average
about 800 metres, in fact attain 1,589 metres. There is therefore no
question of a continental shelf in the sense of Article 1 of the Geneva
Convention, to which Yugoslavia has acceded, since the delimitation
line is not merely beyond the 200 metres depth line, but also beyond
the depths which, in the present state of technology, permit of the
exploitation of the natural resources of the seabed, and this has not yet
reached 200 metres. It is only exploration that has gone further. It is
with the epicontinental platform, on the model of the countries of Latin
America, that the agreement between Yugoslavia and Italy therefore
deals.

The second fact is the claim by Saudi Arabia over the depths of the
Red Sea, which has just been announced *. The Red Sea had been kept

for exploitation on the high seas which he lists as follows: “The U.S. has issued
phosphate leases some 40 miles from the California coast in the Forty-Mile Bank
area in 240 to 4,000 ft. of water... Oil and gas leases some 30 miles off the Oregon
coast in about 1,500 ft. of water: and... (has) threatened litigation against creation
of a new island by private parties on Cortez Bank, about 50 miles from San Clemente
Island off the coast of California, or about L00 miles from the mainiand. Each of the
California areas is separated from the coast by trenches as much as 4,000 to 5,000 ft.
deep. Additionally, the Department of the Interior has, by publishing OCS Icasing
maps, indicated an interest to assume jurisdiction over the ocean bottom as far as 100
miles off the Southern California coast in water depths as great as 6,000 ft.” (Op.
cit. p. 38, note 117.)

1 At the 67th Session of the International Law Commission in 1950, J. L. Brierly
said: “... if the Commission was of the opinion that the right of control and
jurisdiction depended on the presence of the continental shelf, it was committing an
injustice towards certain countries, such as Chile, that possessed no continental
shelf.” G. Amado and J. Spiropoulos supported the same argument, and the former
proposed a lineal limitation of waters 20 miles from the coasts. At the {17th Session
of the LL.C. in 1951, J. M. Yépès submitted a draft to this effect, “with Peru and
Chile in mind”.

2 Common Rejoinder, Annex 7.

3 Le Monde, 30 October 1968.

Beneath the Red Sea there are metalliferous muds, rich in copper, zinc, etc. ...
In some of its deeps there are hot brines. The deposits in solution, as well as the
geothermal energy associated with these hot brines offer resources that may become
available in the not too distant future (Report of the Ad Hoc Committee mentioned
on p. 100, note 2).

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 110

as a mare clausum under the authority of the Arabs and then of the
Ottoman Empire up to the beginning of the 19th century. The Saudi
Arabian declaration is said not to affect freedom of navigation. A cor-
relation, from the geophysical point of view, between this sea, which has
an average depth of 490 metres and reaches 2,359 metres, with the Adri-
atic Sea, is inescapable. A delimitation will undoubtedly be fixed by
agreement between Saudi Arabia and the United Arab Republic which is
opposite to it.

9. A few extracts from the most outstanding statements made in the
course of the Geneva Conference are appropriate to illustrate the problem
with which we are dealing.

El Salvador, adopting a legal standpoint, accepted “the rights of the
coastal State, not only over the continental shelf, but also over an ex-
clusive fishing zone, and its rights to regulate the conservation of natural
resources in zones of the high seas adjacent to that exclusive fishing zone,
in the conviction that that view constituted recognition of the legal unity
of different aspects of the law of the sea !”,

Ghana intervened in turn to raise the question of the economic and
social interests of certain smaller States, including its own, a young coun-
try, which possessed a very narrow continental shelf as a result of a sharp
drop of the seabed near the coast, and which depended almost exclusively
on fisheries for its protein supply. The definition adopted by the Con-
ference, it concluded, ‘might operate to the disadvantage of those coun-
tries”. It was observed at the same Conference that the Ivory Coast
is in an almost identical situation. The cry of alarm by Ghana, on behalf
of the smaller countries, remains as witness to a disturbing reality.

The United Arab Republic proposed a fixed limit, whatever the depth
of the sea, in order that ‘‘consideration should be given to the desire of
countries without a continental shelf >’. Norway suggested that the limit
should be based, not on the configuration of the seabed or the depth of
the water, but on distance from the coast. Such a solution, “in the light
of the principle of State equality, would be fairer *”. Guatemala thought
it advisable to “provide for a new concept, which might perhaps be termed
the ‘continental terrace’, comprising an area bounded by a line drawn
at a given distance from the baseline of the territorial sea of the coastal
State>”’. Yugoslavia made a forma! proposal for a limit situated 100 miles

1 Geneva Conference, Vol. VI, p. 24, paras. 20 and 22.
2 Idem,, p. 11, para. 22.

3 Idem., p. 27, para. 7.

* Idem., p. 5, para. 21.

5 Idem., p. 31, para. 2.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 11

from the coast, ie.. half that adopted by Peru, Chile and Ecuador, in
order to avoid recourse to a double criterion, the 200-metres depth cri-
terion and that of the possibility of exploitation |.

The opinion of Panama was that “‘the term ‘continental base’ would
be more accurate than ‘continental shelf’, for the former referred to the
continental shelf and the continental slope -”. Finally the Netherlands
proposed, “in line with statements made by several representatives, in-
cluding the representative of Panama, ... that the whole of the ‘con-
tinental terrace’, which included both the continental shelf proper and
the continental slope. should be covered by the articles *” of the Con-
vention.

Finally. Chile, Ecuador and Peru made a common declaration con-
firming the one quoted above. In it they stated that “In the absence of
international agreement on sufficiently comprehensive and Just provisions
recognizing and creating a reasonable balance among all the rights and
interests, and also in view of the results of this Conference, the regional
system applied in the southern Pacific... remains in full force” and they
therein affirmed their resolve to assist “in the establishment and extension
of a more just régime of the sea *”.

10. It seems however that the Geneva Conference took a step in the
direction of an extension of the continental shelf when it stipulated, in
Article 1, that this extends to the 200-metres depth line or, beyond that
limit, to where the depth of the superjacent waters admits of the exploita-
tion of the natural resources of the seabed and subsoil,

This fictitious extension of the continental shelf, effected by the Geneva
Convention at the expense of the high seas, weakens the case of those who,
having adopted it, oppose the claims of States which nature has not en-
dowed with a continental shelf and which are able, by a similar fictitious
extension thereof, to find legitimate compensation in the resources of
the waters adjacent to their coasts °.

' Idem, p. 32, para. 7, p. 42. para. 15, and proposal (A/;CONF.13/C.4/L.12).

2 den, p. 5, para. 24.

* Iden, p. 35, para. 6.

+ Idem. p. 132, Doc. A‘CONF.13/L.50,

Attention should be directed also to the reservations made in 1968 by these three
States and also by Argentina, Brazil and El Salvador on the occasion of the report
of the Working Group to the Ad Hoe Committee set up by the General Assembly of
the United Nations to study the peaceful uses of the seabed and the ocean floor,
“understanding, in particular. that the conclusions reached by the Working Group
in no way constitute a prejudgment concerning the legal aspects of the question”.

5 Cf L. Henkin, The Mineral Resources of the Seas, p, 23:°*... since geology was
not crucial to the legal doctrine. it was difficult to resist claims of coastal States that
had no geological shelf, whether in the Persian Gulf or in Latin America.”

112
CONTINENTAL SHELF (SEP. OP. AMMOUN) 112

Inasmuch as the basic motivation of the claims of all concerned is
economic in nature, it is fair that the interests of all States should receive
satisfaction on a basis of equality. Equality in freedom had for centuries
been adopted as a notion peculiar to the law of the sea, before being
definitively extended by the Charter of the United Nations to every
domain of the life of nations and of individuals, thus linking the tradition
with Roman law, which discerned the idea of equality in the concept of
equity '. Should not this idea remain the foundation of the law of the
sea, and of any modification made or to be made to that law: equality
as to the high seas, equality concerning the natural dependencies of the
land, both for the continental shelf and for the epicontinental platform;
consequently, equality in the delimitation of areas of the continental
shelf, which is the question to be resolved in the present proceedings.

11. Moreover, the claims of the majority of these countries go back
as far as, if not further than, the principle of the freedom of the high
seas. This freedom, hallowed by custom in the west since the 17th cen-
tury, was not entirely free from legal limitations. There might be men-
tioned:

(a) Historic waters (gulfs, bays, etc.) such as the Gulf of Fonseca in
Central America, assimilated to internal waters; the Gulf of the
River Plate in Argentina; the Delaware and Chesapeake Bays in
the United States; the Bays of Miramachi, Hudson and Chaleurs
in Canada; the Gulf of Gascony and the Bay of Granville or of
Cancale in France: the Bristol Channel in England; the Bay of Con-
ception in Newfoundland; the Gulf of Manaar and the Bay of Polk
in India: the Gulf of Finland; the Baie du Lévrier in Africa; the
Bays of Tunis and Gabés in Tunisia; the Bay of El Arab on the
Mediterranean coast of the United Arab Republic; the Arabian-
Persian Gulf and the Gulf of Aqaba in the Arab seas ?.

(b) Sedentary fisheries and fisheries with fixed equipment, the customary
rules relating to which were adopted by the Geneva Convention of

' CF. C. del Vecchio, Philosophie du droit, p. 282, note 1.

= The historic character of the Gulf of Aqaba was disputed in the General
Assembly of the United Nations in February 1957. The United States declared
however that, should the case arise, it would accept the decision of the International
Court of Justice (Memorandum of 11 February 1957 to Israel and Declaration by
Secretary of State Dean Rusk of 5 March 1957). The former states that: ‘’In the
absence of some overriding decision to the contrary, as by the Internationa] Court
of Justice, the United States, on behalf of vessels of United States registry, is prepared
to exercise the right of free and innocent passage and to join with others to secure
general recognition of this right’, and the latter states that: **... The United States
view is that the passage should be open unless there is a contrary decision by the
International Court of Justice.”

113

CONTINENTAL SHELF (SEP. OP. AMMOUN) 113

29 April 1958 on the High Seas. There might be mentioned, as
examples, the fisheries of Ceylon and Bahrain (Arabian-Persian
Gulf), the coral banks in the Mediterranean off the coasts of Algeria,
Sicily and Sardinia, and lastly innumerable fisheries in the Red Sea
and in the seas of the Far East !.

(c) Preferential fishing zones possessed by or claimed by a certain
number of States for special reasons of a vital economic nature,
including Peru, Chile, Ecuador, United Arab Republic, Iceland,
etc. 7

12. In fact, the States which claim rights of this kind, from the States
of Latin America to those of Europe, Asia and Africa, rely, according
to the case, on historic title or on regional custom, which could not and
cannot be prejudiced by the establishment of the custom of the freedom
of the high seas, by reason of the priority or effectiveness of the former;
whereas rights over the continental shelf are considered to be exercised
ipso jure, without the aid of effectiveness.

These States can consequently avail themselves of the adage quieta
non movere >, and take shelter behind situations consolidated by time *
which have changed into rules of law, no longer admitting for the future
of any possible protests °, The feeling of society, it must be concluded,

! The pearl oyster fisheries of Ceylon and Bahrain had already received the
attention of Vattel (The Law of Nations, 1758). P. C. Jessup (The Law of Territorial
Waters, 1927, p. 15), also recalled that the pearl fisheries of Ceylon go back in
history as far as to the sixth century B.C. Whilst those of the Arabian-Persian Gulf
were, as is well known, mentioned about the year 1000 in the Arabian Nights.

M. W. Mouton was thus able to write: ‘We believe, that prescriptive rights could
develop quietly, and had existed long enough to be respected when people became
conscious of the freedom of the seas”’ (ap. cit., p. 145).

2 Cf. L. Henkin, op. cit., p. 26: ‘‘Some writers saw in the cases on sedentary
fisheries and submarine mining a basis in customary law for the Truman procla-
mation and for the later Convention on the continental shelf.”

thid., p. 27: “Some of them (the cases cited against res communis) occurred before
the freedom of the sea was established as a principle of the international law. In the
few cases involving pear! or oyster fisheries the claims were based not on occupation,
but on prescription or historic rights.”

> See Arbitral Award of 13 October 1909 in the Grisbadarna case between Sweden
and Norway, where it is stated that ‘it is a settled principle... that a state of things
which actually exists and has existed for a long time should be changed as little as
possible”. This is a principle of general law supported particularly by G. Gidel,
Le droit international public de la mer, Vol. HE, p. 634. It is also the case in Muslim
law, Majallat El Ahkam, Art. 5.

4 The Arbitral Tribunal, in the North Atlantic Coast Fisheries case, recognized in
its award of 27 January 1909 that ‘conventions and established usage might be
considered as the basis for claiming as territorial those bays which on this ground
might be called historic bays”.

5 Cf. Ch. de Visscher, Problèmes d'interprétation judiciaire en droit international
publie, p. 176.

114

CONTINENTAL SHELF (SEP. OP. AMMOUN) 114

is in general favourable to the recognition of historic rights, whether
such recognition be shown by the conduct of States, by judicial or ar-
bitral decisions, or in the teaching of publicists. Furthermore the possi-
bility is not excluded of similar legal situations coming to birth by the
normal operation of legal creation.

*

13. It must, of course, be added that the fact that Articles 1 to 3 of
the Convention on the Continental Shelf are not subject to any reserva-
tions at the time of the signature or ratification of the Convention, does
not involve any contradiction or incompatibility between the concept of
the continental shelf and that of the epicontinental platform; the area
of the platform would simply have to be added, when appropriate, to
the area of the shelf. Thus the Declaration by Argentina of 9 October
1946 proclaims its sovereignty over both these areas simultaneously !.
The Declaration by Mexico of 29 October 1945 claiming exclusive fishing
zones beyond the continental shelf has been interpreted as expressing
the same conception 2. Similarly in the course of the Geneva Conference,
proposals were formulated to join the continental slope to the shelf.
To sum up, the situation is that the concept of the epicontinental plat-
form does not constitute a derogation from the definition of the continen-
tal shelf in Article 1; the shelf and the platform are not mutually exclu-
sive; in the present stage of development of law, they are called upon to
supplement each other in order to meet factual situations differing in
some ways and resembling each other in many others.

It will therefore be impossible henceforth to consider the concept of
the continental shelf without having regard to the parallel or supplemen-
tary concept of the epicontinental platform.

*
* *

14. Two supplementary questions remain, which should be resolved
in order to give a complete picture of the concept or the legal status of
the continental shelf, satisfying the requirements of the arguments in the
present case:

(a) Is the continental shelf referable to the concept of contiguity, or
should it be considered rather as a natural submarine prolongation
of the land territory of the coastal State?

(b) Does the continental shelf consist of an extension of territorial
sovereignty, or does it simply confer rights, either sovereign rights
or exclusive rights?

*

1 The said Declaration reads: ‘It is hereby declared that the Argentine epiconti-
nental sea and continental shelf are subject to the sovereign power of the nation.”

2 Cf. M. W. Mouton, The Continental Shelf. p. 74.

115
CONTINENTAL SHELF (SEP. OP. AMMOUN) 115

15. Is the continental shelf referable to the concept of contiguity, or
should it be considered rather as a natural submarine prolongation of the
land territory of the coastal State?

The argument of contiguity put forward in the Counter-Memorials
and in the course of the speeches made by the representatives of Denmark
and the Netherlands, to the effect that the submarine areas nearest to a
State are presumed to appertain to it rather than to another State, is
claimed to follow from the actual definition of the continental shelf given
in Article 1 of the relevant Convention and to be inherent in the idea that
that State possesses ipso jure a title to these areas or exclusive rights over
them, and thus a direct and essential link—in other words, a link that is
inherent and not merely implicit—founded on the ratio legis of the fun-
damental concept of the continental shelf is said to have been established
between that concept and the delimitation rule of Article 6.

This view would not seem to be accepted as a rule of international law,
as is clear, in particular, from the Award dated 23 January 1925 in the
Island of Palmas case. That Award, delivered by one of the three great
Swiss arbitrators, M. Huber, stressed that ‘‘it is impossible to show the
existence of a rule of positive international law to the effect that islands
situated outside territorial waters should belong to a State from the mere
fact that its territory forms the terra firma (nearest continent or island of
considerable size)”.

This decision, which is generally accepted, also, by analogy, resolves
the case of submarine areas.

The line of argument advanced in the Counter-Memorials 1s also cate-
gorically refuted by previous judicial decisions inasmuch as, in the inter-
pretation of the texts, it openly violates the natural meaning of the words,
when it maintains that the term ‘‘adjacent” which appears in Article 1
of the Convention on the Continental Shelf is the equivalent of the term
“equidistant”, and proceeds to deduce therefrom that the said Article
which defines the continental shelf at the same time determines the rule
by which it is to be delimited, namely the equidistance rule. But if such
had been the intention of the authors of the Convention, they would
have expressed it, instead of allowing it to be deduced in such a laborious
fashion. Further, nothing is to be found in the travaux préparatoires in
support of this opinion, as the Court has shown by referring to the docu-
ments of the International Law Commission and the Committee of Ex-
perts. On the other hand, the use of the term ‘“‘adjacent” is naturally
explained by an intention to confine the continental shelf to a limited
part of the high seas, that part which prolongs the coast, to the exclusion
of the open sea. It would moreover be difficult to accept that, contrary
to good legislative technique, the subtleties and consequences of which
were well known to them, the authors of the Convention used in the same

116
CONTINENTAL SHELF (SEP. OP. AMMOUN) 116

sense two absolutely different words. The term “adjacent” refers only
to the fact of the reciprocal situation of two territories or of two neigh-
bouring maritime areas. The term “equidistant’’, on the contrary, relates
to a measurement to be determined between the two territories or the
two adjacent maritime areas.

Finally, it would not be superfluous to stress the seriousness of the
consequences which the acceptance of this argument would involve.
It would justify territorial or maritime acquisitions repugnant to the
fundamental principles of contemporary international law: for example
the appropriation of large areas of the Arctic Ocean and the Antarctic
Continent, an appropriation which also relies on the doctrine of sectors,
which doctrine, in certain of its elements, is reminiscent of the abandoned
concept of spheres of influence; for example also, the policy derived
from the Berlin Treaty of 1885, which, having divided up Africa, con-
sidered as res nullius, permitted extension of sovereignty starting from
the coast which had been effectively occupied. And should there not be
added to these examples the doctrine of Lebensraum extending beyond
the bounds of a country?

16. The continental shelf is to be conceived, on the contrary, as a
submarine prolongation of the territory: a natural prolongation, with-
out breach of continuity. It is not therefore a question of a debatable
legal fiction, but of geological reality.

It was this idea which was adopted as basis by the States which led
the way in respect of claims over the continental shelf (United States) +,
or over the epicontinental platform (Mexico, Argentine, Peru) 7. The
authority of legal writers is generally favourable to it*, and the Inter-
national Law Commission made it its own.

This concept can also be deduced from the concept, universally recog-
nized, of the territorial sea, which is itself a prolongation or extension of
the national territory.

It is, however, necessary to make a reservation; namely that there must
not be deduced from the unity of the territory and of the continental shelf
or the platform, a unity of legal régime. The difference will appear in the
course of examination of the following question concerning the rights of
coastal States.

Judicial decisions support this reasoning, with a Judgment of this

1 The Truman Proclamation provides in its fourth paragraph: ‘... since the
continental shelf may be regarded as an extension of the Jand-mass of the coastal
nation and thus naturally appurtenant to it.”

2 These States used terms similar to those which appear in the Truman Declaration.
The following wording is used: ‘‘The continental shelf forms a single morphological
and geological unity with the continent.”

3 Cf. the writers mentioned by M. W. Mouton, op. cit. p. 33.

117
CONTINENTAL SHELF (SEP. OP. AMMOUN) 117

Court itself, that of 18 December 1951 in the Anglo-Norwegian Fisheries
case, according to the terms of which “it is the land which confers upon
the coastal State a right to the waters”, which can just as well include the
bed of the waters. It is moreover apparent that the Geneva Conference
was guided by this Judgment in its conception of the continental shelf.

*
* *

17. Does the continental shelf consist of an extension of territorial
sovereignty, or does it simply confer rights, either sovereign right or
exclusive rights?

The conduct of States is various and subject to change. Nonetheless
three attitudes may be discerned which correspond to the three possibili-
ties comprised in the last question raised, in order to round off the ques-
tion of the legal status of the continental shelf: a North American attitude
which holds fast to the notion of exclusiveness; a South American attitude
claiming territorial sovereignty; and lastly the Geneva attitude, which
culminated in the Convention sanctioning rights qualified simultaneously
as sovereign and exclusive.

The Truman Proclamation claimed an exclusive right over the con-
tinental shelf, and without claiming to exercise formal sovereignty there-
over, nonetheless affirmed that the American Government regarded the
natural resources of the subsoil and of the seabed and of the continental
shelf, beneath the high seas and contiguous to the coasts of the United
States, as appertaining to it and subject to its jurisdiction and control.

The series of declarations which followed did not all refrain from pro-
claiming the sovereignty of the coastal State over the bed and subsoil of
the high seas. This was the case with the majority of the States of Latin
America which extended their sovereignty for 200 nautical miles over the
epicontinental platform, or beyond.

As for the Geneva Conference, after wavering between the concepts of
exclusive rights and sovereign rights, it opted for the latter in Article 2,
paragraph 1, of the Convention, and in paragraph 2 of the same Article,
it described the sovereign rights as exclusive.

The United States, mentioned above, ranged itself on the side of this
latter concept by ratifying the Convention.

*

118

CONTINENTAL SHFLF (SEP. OP. AMMOUN) 118

18. Nonetheless, however varied State practice may be, it should be
possible to make it subject to a dual criterion. The rights which coastal
States can exercise over the continental shelf or the epicontinental plat-
form are capable of being determined as a group by the economic objec-
tives given for them, and by the consideration that the freedom of the
high seas should not be affected except to the extent required for the
realization of these objectives. In other words, since it is a question of a
principle of the law of nations from which economic, social and political
development, as well as scientific and technological progress, may bring
about necessary derogations, the rights which the coastal State can exer-
cise over the continental shelf or the epicontinental platform should be
limited to those which can be justified from the standpoint of the realiza-
tion of the ends for which they were instituted, that is to say, generally
speaking, the exclusive exploitation, as against other States, of submarine
resources in the one case, or of fishing in the other.

As to the sovereign character attributed to these rights, it would appear,
in the three situations to which attention has been drawn, to be a case of
a somewhat dismernbered territorial sovereignty, of which certain at-
tributes are exercised over the continental shelf or the epicontinental
platform. The legal content of the sovereign rights remains limited to
those acts which are strictly necessary for the exploration, exploitation
or protection of the resources of the continental shelf, to the exclusion of
the waters and of the area lying above them. In the same way, the legal
content of what has been called sovereignty by the States of Latin America
is limited to the objects mentioned above, to which is to be added fishing,
excluding freedom of navigation and the right to lay and maintain cables
and pipelines. There would thus be no question, in any case, of sover-
eignty in the form in which it is exercised over the territorial sea.

*

19. The dual criterion of the economic objectives given for the rights
of coastal States and of respect, to the necessary extent, of the freedom
of the high seas, naturally excludes the use of the continental shelf, just
as of the high seas, for military purposes. The freedom of the high seas,
a principle of positive international law, remains sacrosanct so long as a
rule of the same nature has not subjected it to restrictions by specifying
individual rights which States would be empowered to exercise therein !.

ok

20. It will hereinafter be established that the three Parties to the pre-
sent case are bound by the provisions of the aforementioned Article 2

! This reasoning does not seem to be that followed by the Ad Hoc Committee
set up by the United Nations to study the peaceful uses of the seabed and the ocean
floor.

119
CONTINENTAL SHELF (SEP. OP. AMMOUN) 119

of the Geneva Convention on the Continental Shelf, the Netherlands and
Denmark by having ratified the Convention, and the Federal Republic
of Germany by having acquiesced in the application to it of that same
Article.

*
* *

21. The concept of the continental shelf being recognized, together
with the rights exercised thereover, as forming part of customary inter-
national law, the request made of the Court by the Parties involves first
of all the following question:

Does there exist a general or particular convention, within the meaning
of Article 38, paragraph 1 (a), of the Statute of the Court, containing
rules applicable to the delimitation between coastal States of the areas
of the continental shelf of the North Sea which they claim?

4

The Governments of the Kingdom of the Netherlands and the Kingdom
of Denmark rely on the provisions of Article 6 of the Geneva Convention
on the Continental Shelf of 29 April 1958 for the delimitation of the
areas of the North Sea continental shelf.

The Government of the Federal Republic of Germany, which has not
ratified the Convention, has also not recognized the relevant dispositions
of Article 6, relied on by the Governments of the Netherlands and Den-
mark, as it has done in the case of the first two articles of the said Con-
vention |.

The conduct of the Federal Republic and certain declarations made
by it have however been interpreted by the opposing Parties as amounting
to a commitment on its part to submit to the provisions of Article 6 of
the Convention.

The Court, in its study of the effects of the declarations made by or
the conduct of a State, concludes-—‘‘that only the existence of a situation
of estoppel could suffice to lend substance to this contention [sc., that
the Federal Republic of Germany is bound by its declarations]—that is
to say if the Federal Republic were now precluded from denying the ap-
plicability of the conventional régime, by reason of past conduct, de-
clarations, etc., which not only clearly and consistently evinced accep-
tance of that régime but also had caused Denmark or the Netherlands,
in reliance on such conduct, detrimentally to change position or suffer
some prejudice”.

1 Supra, para. 3.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 120

The Judgment does not take into account a well-settled doctrine that
a State may be bound by a unilateral act !.

As a consequence of its argument, the Judgment mentions in para-
graph 31 that—‘‘it seems to the Court that little useful purpose will be
served by passing in review and subjecting to detailed scrutiny the various
acts relied on by Denmark and the Netherlands as being indicative of
the Federal Republic’s acceptance of the régime of Article 6”.

While agreeing with the Judgment that Article 6, as such, is not ap-
plicable to the delirnitations envisaged in the present cases, | consider
that the unilateral acts and the conduct of the Federal Republic should
be analysed in order to clinch this conclusion.

*

22. The Federal Government’s delegation announced, as is mentioned
in the minutes of the negotiations with the Netherlands Government
dated 4 August 1964 ?, that its Government “is seeking to bring about a
conference of States adjacent to the North Sea ... in accordance with
the first sentence of paragraph | and the first sentence of paragraph 2
of Article 6 of the Geneva Convention on the Continental Shelf” and
that “the Netherlands delegation has taken note of this intention”. But
this commitment, expressly limited to two provisions of Article 6 con-
cerning the advisability of preferably having recourse to agreements for
the delimitation of the continental shelf, cannot be interpreted as a
declaration referring to the whole of the provisions of that Article.
The letter of the text is categorically opposed to such an interpretation.
In particular, the provision concerning delimitation of the continental
shelf by application of the equidistance rule remains outside this com-
mitment.

An attempt has nonetheless been made to see in the treaties of | Decem-
ber 1964 and 9 June 1965, between the Federal Republic of Germany
on the one side and the Kingdom of the Netherlands and the Kingdom
of Denmark on the other, an acquiescence in the application of the
equidistance rule.

Acquiescence flowing from a unilateral legal act, or inferred from the
conduct or attitude of the person to whom it is to be opposed—either
by application of the concept of estoppel by conduct of Anglo-American
equity, or by virtue of the principle of western law that allegans contraria
non audiendus est, which has its parallel in Muslim law 7—is numbered
among the general principles of law accepted by international law as

1 E. Suy, Les actes juridiques internationaux, 1962, pp. 148 and 152.
= Memorial, Annex 4.
3 Majallat El Ahkam, Art. 100.

121

CONTINENTAL SHELF (SEP. OP. AMMOUN) 121

forming part of the law of nations, and obeying the rules of interpretation
relating thereto. Thus when the acquiescence alleged is tacit, as it would
be in the present case inasmuch as it is inferred from the conduct of the
party against whom it is relied on, it demands that the intention be
ascertained by the manifestation of a definite expression of will, free of
ambiguity.

But the Federal Government formally declared in the joint minutes
of 4 August 1964, referred to above, that “it must not be concluded from
the direction of the proposed partial boundary that the latter would
have to be continued in the same direction”. It was also mentioned in
the Protocol to the German-Danish Treaty of 9 June 1965 !, that ‘‘as
regards the further course of the dividing line, each Contracting Party
reserves its legal standpoint”.

Considering that the negotiations which culminated in the treaty of
1 December 1964, as well as those which culminated in the treaty of
9 June 1965 and the annexed Protocol of the same date, constitute an
indivisible whole, the Court cannot disassociate therefrom the declara-
tions mentioned above of 4 August 1964 and 9 June 1965 which brought
each set of negotiations to a close, and of which the meaning does not
lend itself to any equivocation, and is such as not to allow any doubt
to subsist as to the intention of the Federal Republic of Germany to
exclude the application of equidistance pure and simple to the delimita-
tion beyond latitude 54 degrees north. There is in fact no reason why,
in the interpretation of unilateral declarations, the settled jurisprudence
of the Court should not be followed, to the effect that the terms of the
treaty should be interpreted “in their natural and ordinary meaning ?”.
It should also be remarked that the German-Danish treaty allegedly
includes only one equidistance point, the terminal of the partial bound-
ary >.

It would be no less incorrect to say, as a result of similar reasoning
concerning the true intention of the Federal Government, that the latter,
by its Proclamation of 20 January 1964 and the exposé des motifs of the
law on the continental shelf which it promulgated on 24 July of the
same year. “acknowledges the Geneva Convention as an expression of
customary international law”, as the other Parties to the case claim *.
Nor is this in fact the case as regards the provisions of the 1958 Con-
vention concerning the equidistance line, which could naturally not

2 Advisory Opinion of 28 May 1948 on Admission of a State to Membership in the
United Nations; Advisory Opinion of 3 March 1950 on the Competence of the
General Assembly for the Admission of a State to the United Nations; Judgment in
the Asylum case of 20 November 1950; Advisory Opinion of 8 June 1960 on the
Constitution of the Maritime Safety Committee.

* Reply, para. 29.

+ Counter-Memorial of the Danish Government, para. 24 and Counter-Memorial
of the Netherlands Government, para. 25.

122
CONTINENTAL SHELF (SEP. OP. AMMOUN) 122

we will suppose to be efficacious. the status of a customary law rule
which it does not possess |.

Furthermore, what legal effect should be attributed to the signature
by the Federal Republic of Germany of the Protocol for Provisional
Application of the European Fisheries Convention of 9 March 1964,
Article 7 of which provides for recourse to the median line, every point
of which is equidistant from the coasts of each of the adjacent or opposite
parties? The commitment of the Federal Republic to the application of
the equidistance line to fishing zones, which it confirmed by the aide-
mémoire of 16 March 1967, is not open to argument. But does its scope,
exceeding the object for which it was agreed, extend to the continental
shelf? The reply is more than doubtful, because of the express opposition
by the Federal Government to the application of the equidistance line,
in the documents which have successively been discussed, dated 4 August
1964, 9 June 1965, 20 January 1964 and 24 July 1964. Such seems to
be the interpretation to be given to the intention of the Federal Republic.

This being the case, the Court does not have to embark, in addition,
on an enquiry into the private thoughts of the Federal Republic, as the
Netherlands Government calls upon it to do, by asking in its Counter-
Memorial why the Federal Republic stressed, in the minutes of 4 August
1968, that the boundary should be determined with due regard to the
special circumstances prevailing in the mouth of the Ems, if it did not
have in mind the terms of paragraph 2 of Article 6 of the Geneva Con-
vention, 1.e., the equidistance rule.

It is not therefore possible to interpret the treaties of |} December 1964
and 9 June 1965, between the Federal Republic on the one side, and the
Netherlands and Denmark on the other, in the light of the minutes of
4 August 1964 and the Protocol of 9 June 1965, nor the declaration of
the Federal Government of 20 January 1964 and the exposé des motifs
of the law of 24 July of the same year, as an acquiescence in the applica-
tion of the equidistance line as contemplated in the Convention of
29 April 1958 on the Continental Shelf.

*
* *

23. To sum up the delimitation between the Parties of the areas of
the North Sea continental shelf over which they claim sovereign rights
is not governed by the provisions of Article 6 of the Geneva Convention
of 29 April 1958 on the Continental Shelf, which applies the principle
of equidistance.

There is therefore no need to embark on the interpretation of the
provisions of the said Article 6 as a legal text binding on the Parties.
Nonetheless, we may subsequently return to this point, if the adoption
of the concepts included in it could afford inspiration for a solution

1 Infra, paras. 24-30.

123

CONTINENTAL SHELF (SEP, OP. AMMOUN) 123

drawn from another source of law, such as a general principle of law
recognized by the nations.

*
* *

24. In the absence of an international convention establishing rules
expressly recognized by the Parties to the dispute, do not principles or
rules of customary international law exist which are applicable to the
delimitation of the continental shelf?

And in the event of there being no general custom, might there be a
regional custom peculiar to the North Sea?

*

The Kingdoms of Denmark and of the Netherlands have contended
that having fixed the boundaries of their parts of the continental shelf
on the specific basis of the principles and rules of law generally recognized,
those boundaries are not prima facie contrary to international law and
are valid as against other States. They base their contention on the
provisions of Article 6, paragraph 2, of the Geneva Convention on the
Continental Shelf, according to which, in the absence of agreement, and
unless another boundary line is justified by special circumstances, the
boundary Is to be determined by application of the principle of equidis-
tance from the baselines from which the breadth of the territorial sea
of the adjacent States in measured.

The unilateral action on which the Danish and Netherlands Govern-
ments rely would have been opposable to other States and consequently
to the Federal German Government, if the rule of delimitation to which
they attribute an effect erga omnes had become a norm of positive
international law binding States which, like the Federal Republic, are
not parties to the 1958 Convention.

As has been seen, Articles 1 and 2 of the said Convention, which
establish the institution of the continental shelf, were not the result of
a codification of the international law in force, forming part of the
lex lata, but the effect of the progressive development of the law, de lege
ferenda, referred to in Article 13 of the Charter of the United Nations
and Article 15 of the Statute of the International Law Commission.
The case of the provisions of Article 6, paragraph 2, could not be different,
inasmuch as they apply the principle laid down in Articles | and 2.

Has this progressive development of the law reached the stage, in
respect of what is stated in paragraph 2 of Article 6, of settled custom,
since the adoption of the equidistance method by the International Law
Commission in 1953, and subsequently by the Geneva Conference in
1958, in both cases by a very large majority?

Admittedly, the notion of the continental shelf itself, which made its
first appearance in State practice in 1945, took only a dozen years to

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 124

become a universally recognized custom. The voices of authoritative
writers ! and jurists of all kinds, at international conferences, were unable
to stem the current of legal thinking resulting from unprecedented
scientific progress and the rapid development of the economic and social
life of the nations. That is to say that this recent rule of the law of the
sea, under the pressure of powerful motives and thanks to State practice
and the effect of international conventions, was within a short time
converted into a customary law meeting the pressing needs of modern
life.

Can the same be said of the concept of equidistance in Article 6 of
the Geneva Convention?

It is necessary to ascertain, in a first limb of the discussion, what State
practice has been, both before the date of the Convention of 29 April 1958
on the Continental Shelf and after that date.

*
* *

25. One prior question calls for resolution: what are the acts of
delimitation which must be tabulated in order to select those which
have contributed to the formation of the material element of custom,
both with reference to the nature of the waters delimited, and with
reference to the situation of the coastal States of those waters, adjacent
States and opposite States.

The Court has considered that only delimitations concerning the con-
tinental shelf and made between adjacent States can be taken into account
as precedents. It seems however that the acts which must be taken into
account in this investigation are, with reference to the nature of the
waters, all those pertaining to the delimitation of maritime waters of
whatever kind: territorial seas, straits, contiguous zones, fishing zones,
continental shelf, epicontinental platform--to which must be added
lakes. The underlying concept common to all these stretches of water,
which is decisive by way of analogy, is that they all proceed from the
notion of the natural prolongation of the land territory of the coastal
States 2. Thus, the 1953 Committee of Experts, drawing no distinction
in this connection between the territorial sea and the continental shelf,
wrote in its report that it had “considered it important to find a formula
for drawing the international boundaries in the territorial waters of
States, which could also be used for the delimitation of the respective
continental shelves . . .”.

On the other hand, it is obvious that boundary lines dividing rivers
should not be selected as precedents. Moreover, such boundary lines

! In particular, those of G. Scelle and A. de Lapradeile; the representative of the
Federal Republic of Germany, Dr. Miinch, still said of the continental shelf rule at
the Geneva Conference that ‘‘many authorities reject it de lege lata and de lege
ferenda.”

2 Supra, para. 15.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 125

follow the thalwegs or the navigable channels much more frequently
than the middle of the stream.

The acts of delimitation with reference to adjacent or opposite States
require more detailed examination.

All such acts should be drawn on, again on the ground of their common
underlying concept. The example has been set by the three conventions
adopted at Geneva concerning respectively the territorial sea, the con-
tiguous zone and fishing zones. All three take, in so many words, as
their basis for delimitation “tthe median line every point of which is
equidistant from the nearest points on the baselines ...”. And those
conventions laid it down that this provision was applicable to lateral
delimitations just as to delimitations between opposite States !.

Should not this assimilation between these two types of delimitation
be reflected in the interpretation of Article 6 of the Convention on the
Continental Shelf, even though the two different terms, median line and
equidistance line, are there employed?

It is imperative in the present case to interpret the Convention on the
Continental Shelf in the light of the formula adopted in the other three
conventions, in accordance with the method of integrating the four
conventions by co-ordination. For the four conventions, voted on the
same day at one and the same meeting, constitute a body of treaties all
falling within the same legal framework, that of the law of the sea.
Thus they were drawn up by the International Law Commission of the
United Nations and submitted to the Geneva Conference in a single
document. Must it not consequently be agreed that, notwithstanding
the differences of wording, or the disparity between the terminology
noticed in the three conventions mentioned on the one hand, and the
Convention on the Continental Shelf on the other, the same equidistance
rule is applicable, according to the meaning of the four conventions, to
lateral delimitations just as to median delimitations?

It will be noticed that the rule having been understood in this way
in international circles, the 13 States which signed the Convention con-
cluded in London on 9 March 1964 took over word for word from the
three above-mentioned Geneva conventions their common formula for
States lying opposite or adjacent to each other.

If nevertheless the text of the Convention on the Continental Shelf
emerged from the deliberations of the conference with a wording different
from that of the other three conventions, that fact is to be attributed to
the contingencies of discussion at a meeting. Delimitations both between
adjacent States and between States lying opposite each other formed the
subject, before the International Law Commission, of a single form of
words covering both situations. The fact that they were mentioned, in

* Convention on the Territorial Sea, Article 12; on the Contiguous Zone, Article
24; on Fishing and Conservation of the Living Resources of the High Seas, Article 7,
which refers to Article 12 of the Convention on the Territorial Sea.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 126

the convention drawn up during the conference in separate paragraphs
of Article 6, and that the two texts were drafted in somewhat different
terms, is to be explained by the vicissitudes of discussion in two Com-
mittees, and does not permit of the deduction therefrom of a difference
between a median line applicable to States lying opposite each other and
an equidistance line for demarcating the boundary between adjacent
States. The travaux préparatoires are no less explicit, in this respect, than
the clarity of the terms employed in the four conventions concerning the
law of the sea, which refer, as to a single whole, to the median line and
equidistant points as applicable to adjacent States and States lying
opposite each other. This amounts to saying, in short, that the notion
of equidistance is the rule for both sorts of delimitation.

BA
* *

26. The instruments prior to the Convention on the Continental
Shelf, concerning the delimitation of maritime waters—territorial sea,
straits, lakes, contiguous zone, fishing zones, continental shelf, epicon-
tinental platform—could not be more varied in nature.

It will subsequently be seen that the proclamations and other pro-
nouncements made in 1945 by the United States, in 1947 by Nicaragua,
in 1949 by Saudi Arabia and the States of Kuwait, Bahrain, Qatar, Abu
Dhabi, Sharjah, Ras al Khaimah, Umm al Qaiwain and Ajman, and in
1955 by Iran, all relied on justice or equity. This was the largest group
of States.

The treaty of 27 September 1882 between Mexico and Guatemala, as
well as the decree of the Government of Cambodia of 30 December 1957,
adopted the method of a line perpendicular to the coast.

The method of extending the land frontier seawards was followed in
the decree of the French Government of 25 May 1960, confirming the
agreement between France and Portugal concerning Senegal and what
is referred to as Portuguese Guinea. The same was done in respect of
the boundaries laid down in 1953 under the Australian pearl fisheries
legislation of 1952-1953.

The delimitation of the epicontinental platform between Chile, Ecuador
and Peru followed geographical parallels of latitude.

The Agreement of 15 June 1846 between the United States and Canada,
and the 1928 Act endorsing the Agreement of 19 October 1927 between
Singapore and Johore both follow the channel between the two coasts.

A number of agreements were noted which opted for equal division,
employing the following expressions: “equidistant from” or “half-way
between” the coasts, or along ‘‘the middle line”. Such were, for example,
the Agreement of 11 April 1908 between the United States and Great
Britain, the Agreements of 28 September 1915 between Malaysia and
Indonesia, of 28 April 1924 between Norway and Finland, the Peace
Treaty of 4 January 1932 between Italy and Turkey, the Agreements of

127
CONTINENTAL SHELF (SEP. OP. AMMOUN) 127

30 January 1932 between Denmark and Sweden, and those of the Peace
Treaty with Italy of 10 February 1947, delimiting the territorial waters
of Trieste, and, finally, the Agreement of 22 February 1958 between
Saudi Arabia and Bahrain.

Delimitations of lakes sometimes referred to the median line or the
middle of the water, sometimes to the thalweg, and sometimes followed
the banks of the lake or did not purport to be based on any method.

A rather special case was that of the Agreement of 25 February 1953
between France and Switzerland for the delimitation of the Lake of
Geneva along “... a median line and two transversal arms ...”, this
line being “replaced, for practical reasons by a six-sided polygonal line
with a view to effecting a compensation as between the areas”.

Finally, a number of agreements and other instruments made no
reference to any method whatsoever. This was the case with the Agree-
ments of 1918 between China and Hong Kong and of 1925 between the
United States and Canada; the 1942 treaty between the United Kingdom
and Venezuela and the 1957 Agreement between the Soviet Union and
Norway.

*
* *

27. It does not seem that any conclusion can be drawn from these
extremely varied formulae which have been employed, unless it be that
they constitute a set of methods to which States might freely have
recourse in order to reconcile their respective interests. Accordingly,
the use of one method or another, not excepting that which employs
the median line, does not indicate any opinio juris based on the awareness
of States of the obligatory nature of the practice employed.

+
* *

28. Since the above-mentioned acts adopting the median line or the
equidistance line are not capable of creating a custom, it remains to be
seen whether those which have occurred since the signature of the Con-
vention on the Continental Shelf, by being added thereto, have had this
effect.

In order to resolve this question, the Court argues that a norm-
creating convention has, as such, an influence on the formation of custom.
The function of State practice is envisaged, on this line of reasoning,
as being appropriate cases to support the potentially norm-creating
nature of the convention.

It appears to me that this reasoning is contrary to both the letter and
the spirit of Article 38. paragraph | (5), of the Court's Statute, which

128
CONTINENTAL SHELF (SEP. OP. AMMOUN) 128

bases custom on State practice. The 1958 Convention, like any other
convention, has therefore no other influence on the formation of custom
than that which is conferred upon it by the States who have ratified it,
or have merely signed it: the deliberate legal act of ratification, and the
legal fact of signature, both constitute attitudes which count in the
enumeration of the elements of State practice.

*

29. Consequently, in order to draw up as complete as possible a
current list of precedents of such a kind as to contribute towards the
transformation of the equidistance method into a rule of customary
law, it would be necessary to tabulate:

(a) the deliberate legal acts of ratification of the aforesaid Conventions;

(b) the legal facts of signature of the Conventions;

(c) the various acts of delimitation of the territorial sea, the contiguous
zone, fishing zones, straits, lakes, the continental shelf and the
epicontinental platform.

States whose acts of delimitation have been referred to and which are
included under sub-paragraphs (a) and (b) include: the Soviet Union,
Finland, Australia, the United Kingdom, Sweden, Denmark, the United
States and the Federal Republic of Germany. There is thus no need to
include them once again among the total number of States which have
carried out acts of delimitation.

In addition to the above-mentioned States, the Netherlands and Den-
mark mention in their Common Rejoinder those which have opted for
the equidistance line.

So far as Kuwait is concerned, the representatives of the Federal
Republic argued that its agreement with the concessionary company
could not be regarded as a precedent, since it was not a convention be-
tween States.

Numerous concessions under public law have given rise to judicial
precedents in various questions of international law. Nevertheless, an
agreement concerning a concession by a State to a company does not,
per se or as such, constitute an element of the practice which contributes
to the creation of international custom. It is only by a legitimate assimila-
tion of the position taken up by the State granting the concession, to a
unilateral act, that the case of Kuwait might be considered. Never-
theless, the attitude which is attributed to it, like that attributed to Iran,
demands careful thought. They might have been considered as precedents
contributing towards the establishment of custom if those States had not
refrained from referring to the equidistance method, although their legal
advisers must assuredly have been aware of the discussions that had taken
place at the Geneva Conference. The inmost thoughts of those States
cannot be plumbed, so as to claim that an opinio juris attached to the

129

CONTINENTAL SHELF (SEP. OP. AMMOUN) 129

demarcations which they made without referring to a rule they believed
themselves obliged to apply. The more so in that on account of the steps
taken by each of them in drawing lines of demarcation of their continental
shelves one cannot help looking back to their respective declarations of
1947 and 1955, in which they specified that they would rely in this con-
nection on the notion of equity.

So far as Iraq is concerned, it was stated in the Rejoinder that that
State ‘automatically considered that the equidistance principle expressed
in Article 6 of the Continental Shelf Convention would govern the delimi-
tation of her continental shelf in the absence of an agreement or of special
circumstances justifying another boundary line !”. But the declaration
of Iraq was made on 10 April 1958, 1.e., before the signature of the Geneva
Convention; the reference to Article 6 thereof is consequently out of
place. The Iraqi declaration can nevertheless be taken into consideration,
like the Truman Proclamation, as starting a trend towards a new custom.

The Agreement between the United Kingdom and Norway, signed on
10 March 1965, which adopted the equidistance rule, constitutes another
precedent. The same can be said of the Agreement of 8 December 1965
between Denmark and Norway, the Proclamation of 30 March 1967 by
the President of the Republic of Tanzania concerning the delimitation
of the territorial sea between Tanzania and Kenya, the Agreement of
20 March 1967 between Morocco and Spain dealing with the Straits of
Gibraltar, and the Agreement of 24 July 1968 between Sweden and Nor-
way.

But what view should be taken of the attitude of Belgium? Although
it did not sign the Convention on the Continental Shelf, the Belgian
Government, in a Note of 15 September 1965 from the Belgian Embassy
to the Netherlands Ministry of Foreign Affairs, stated that “the two
countries are in agreement on the principle of equidistance and on its
practical application”. Furthermore, the provisions of the Convention
on the Continental Shelf were adopted in a bill, accompanied by an
exposé des motifs which was submitted to the Chamber of Representatives
on 23 October 1967. The bill, while totally devoid of legal effect, never-
theless expresses the official point of view of the Government. It con-
stitutes one of those acts within the municipal legal order which can be
counted among the precedents to be taken into consideration, where
appropriate, for recognizing the existence of a custom. In any event, the
attitude of the Belgian Government is expressed without any possible
equivocation in the statement contained in the State to State communica-
tion of 15 September 1965, to which the character of precedent cannot be
denied 2.

Furthermore, since the European Fisheries Convention of London of
24 March 1964 adopted the equidistance formula on the model of the

! Rejoinder, para. 72.
2 Supra, para. 21, on the effect of unilateral declarations.

130

CONTINENTAL SHELF (SEP. OP. AMMOUN) 130

Geneva Conventions on the Territorial Sea, the Contiguous Zone and
Fishing Zones !, it should be noted that seven States which are not parties
to those conventions signed the London Convention. They are to be
added to those States, already mentioned, which have applied the equi-
distance method.

Thus, finally, in the course of the decade which has elapsed since the
institution of the new rule by treaty, a dozen States not parties to the
1958 Convention on the Continental Shelf can be counted which have
opted, in addition to the signatory States of that Convention, for the
equidistance method.

However important these precedents may be, and despite the fact that
those relating to all kinds of waters have been drawn upon, their number
amounts to only about half of that of the international community. It is
difficult to find in this elements capable of constituting the generally
accepted practice of Article 38, paragraph 1 (6), of the Statute of the
Court.

*

30. There is a textual argument which is of all the more account in
that it firmly confirms this view of the matter. It is that drawn from Ar-
ticle 12 of the Convention on the Continental Shelf, which makes a
distinction between Articles 1 to 3 and ali the other articles, by providing
that to the former alone no reservations may be made. The Court has
dealt extensively with this point, and I need only refer to it in order to add
that the power to subject the implementation of the provisions of Ar-
ticle 6 to reservations implies the absence, in the minds of the signatories
of the Convention, of the opinio juris sive necessitatis. The latter requires
consciousness of the binding nature of the rule, and it is self-evident
that a rule cannot be felt to be binding when the right not to apply it is
reserved.

The conclusion cannot therefore be avoided that the equidistance
method of Article 6 of the said Convention of 29 April 1958 has not
acquired the nature of a customary rule which it did not have formerly.

*
* *

31. Nor are there to be found therein the elements which go to make
up a regional custom. For while a general rule of customary law does not
require the consent of all States, as can be seen from the express terms of
the Article referred to above—but at least the consent of those who were
aware of this general practice and, being in a position to oppose it, have
not done so *—it is not the same with a regional customary rule, having

! Supra, para. 22.

2 Thus the right of countries becoming independent, which have not participated
in the formation of rules which they consider incompatible with the new state of
affairs, is preserved.

131

CONTINENTAL SHELF (SEP. OP. AMMOUN) 131

regard to the small number of States to which it is intended to apply and
which are in a position to consent to it. In the absence of express or tacit
consent, a regional custom cannot be imposed upon a State which refuses
to accept it. The International Court of Justice expressed this clearly in
its Judgment of 20 November 1950 in the Asy/um case in the following
terms: “The Party which relies on a custom of this kind [sc., regional or
local custom] must prove that this custom is established in such a manner

yoo

that it has become binding on the other Party '.

Accordingly, the Federal Republic of Germany cannot be bound by a
so-called regional customary rule which it rejects. It has expressly recorded
its opposition to the rule in question; firstly in its Reply of 26 August 1963
to the note verbale from the Netherlands Embassy in Bonn: and sub-
sequently in the Special Agreement of 2 February 1967, in which the
Government of the Netherlands took formal note of this, as did the Gov-
ernment of Denmark. Moreover, in its Proclamation of 20 January 1964,
the Federal Government distinguished between the principle of the con-
tinental shelf itself and the rules concerning its delimitation ?.

*
* *

32. Consequently it cannot be accepted, as the Governments of the
Kingdoms of Denmark and of the Netherlands maintain, that the rule in
Article 6 of the Geneva Convention concerning the delimitation of the
continental shelf has acquired the character of a general rule of inter-
national customary law or that of a regional customary rule.

The equidistance line having been rejected as a rule of positive law,
recourse may be had to it, after the fashion of those States which have
applied it voluntarily, as a method which can, subject to necessary recti-
fications in accordance with the circumstances, ensure an equitable delimi-
tation.

Thus it is necessary in the last analysis to have regard to the general
principles of law recognized by nations.

*

However the Court has not considered that it should do this; it has
taken the view that, failing a method of delimitation which the Parties
are bound to use, they should be called upon to negotiate an agreement
by the application of equitable principles.

‘ In support of this opinion, cf. I.C.J., Asylum case, Judgment of 20 November
1950; and the Judgment of 27 August 1953 in the Rights of Nationals of the United
States of America in Morocco case.

2 Counter-Memorial of the Netherlands and Denmark, Annex 10. Exposé des
motifs of the German Bill on the Provisional Determination of Rights over the
Continental Shelf.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 132

The equity which the Court recommends to the Parties’ consideration
would appear to be nothing other than justice: ‘whatever the legal reason-
ing of a court of Justice”, says the Judgment, “‘its decisions must by
definition be just, and therefore in that sense equitable’. The Judgment
arrives at the obvious truth that it is necessary to be just, and does not
give much indication to the Parties, each of whom considers that its own
position is equitable.

What is just is however not always equitable, witness the well-known
adage: summum jus summa injuria. And it is in order to mitigate this in-
convenience of strict justice that recourse may be had to equity whose
role is to moderate the rigour of law.

The truth of the matter is that the principle of equity which must be
applied is not the abstract equity contemplated by the Judgment, but
that which fills a lacuna, like the principle of equity praeter legem, which
is a subsidiary source of law. Contrary to the opinion of the Court, there
is a lacuna in international law when delimitation is not provided for
either by an applicable general convention (Article 38, paragraph 1
(a)), or by a general or regional custom (Article 38, paragraph 1 (b)).
There remains sub-paragraph (c}, which appears to be of assistance in
filling the gap. The question which arises is therefore as follows:

33. Does there exist a general principle of law recognized by the nations,
as provided for by Article 38, paragraph (c), of the Statute of the Court,
from which would follow a rule to the effect that the continental shelf
could, in case of disagreement, be delimited equitably between the
Parties?

It is important in the first place to observe that the form of words of
Article 38, paragraph 1 (c), of the Statute, referring to “the general
principles of law recognized by civilized nations”, is inapplicable in the
form in which it is set down, since the term “‘civilized nations” is in-
compatible with the relevant provisions of the United Nations Charter,
and the consequence thereof is an ill-advised limitation of the notion of
the general principles of law 1.

The discrimination between civilized nations and uncivilized nations,
which was unknown to the founding fathers of international law, the
protagonists of a universal law of nations, Vittoria, Suarez, Gentilis,
Pufendorf, Vattel, is the legacy of the period, now passed away, of colo-
nialism, and of the time long-past when a limited number of Powers

1 S. Krylov, in his dissenting opinion in the case of Reparation for Injuries Suffered
in the Service of the United Nations, decided on 11 April 1949, omits the word
civilized’? when referring to the general principles of law. He does not however give
reasons for this omission. But in his course of lectures at The Hague Academy of
International Law in 1947, he raised his voice against the arbitrary treatment given
to the so-called native States (Recueil des Cours, 1947, I, p. 449).

133
CONTINENTAL SHELF (SEP. OP. AMMOUN) 133

established the rules, of custom or of treaty-law, of a European law
applied in relation to the whole community of nations. Maintained and
sometimes reinforced at the time of the great historical settlements—
Vienna 1815, Berlin 1885, Versailles 1920, Lausanne 1923, Yalta 1945—
European international law had been defended by jurists of indisputable
authority in the majority of branches of international law, such as Kent,
Wheaton, Phillimore, Anzilotti, Fauchille, F. de Markas, Westlake,
Hall, Oppenheim, Politis: thus the last-mentioned writer’s La morale
internationale is striking by reason of the fact that it is centered on Europe
alone and Europe’s exclusive interests. However great and powerful the
thinking of these renowned jurists may be, their concept of a family of
European and North Atlantic nations is nonetheless beginning to be
blurred by the reality of the universal community, in the thinking of the
internationalists of a new age such as S. Krylov, M. Katz, W. Jenks and
M. Lachs. What is more, the universalist jurists of Europe had been
preceded by those of Asia and the Middle East: Sui Tchoan-Pao, Bandyo-
padhyoy, Rechid.

Whether the adepts in the notion of the law recognized by civilized
nations assess degrees of civilization by reference to the competence of
authority to preserve the rights of foreigners !, or to its power to ensure
the protection of the fundamental rights of the human person ?, it is
impossible to avoid the thought that the colonial régime should not have
been excluded from the factors of assessment belonging to one or other
of these criteria, since the colonized were foreigners vis-a-vis the colonizers,
and had been deprived of certain of their fundamental rights >.

Moreover, the discrimination condemned by writers is in absolute
contradiction with the provisions of the United Nations Charter, stipu-
lating henceforward “the sovereign equality” of all the Member nations,
and for their participation both in the elaboration of international law
in the organs of the United Nations, particularly the International Law
Commission on which all nations are called upon to sit, and in the ap-
plication, interpretation and to a certain extent the development and
evolution of international law, by virtue of Article 9 of the Statute of
the Court, according to which ‘‘the electors shall bear in mind ... that
in the body as a whole the representation of the main forms of civilization
and of the principal legal systems of the world should be assured”’.

Thus it is that certain nations, to whose legal systems allusion
was made above, which did not form part of the limited concert of
States which did the law-making, up to the first decades of the 20th cen-
tury, for the whole of the international community, today participate

1 Westlake and R. Y. Jennings.

? A. Favre.

3 W. Jenks recalls that at an earlier period, the Latin American writers had had a
similar reaction in face of the law of Europe (The Common Law of Mankind, p. 74).

134
CONTINENTAL SHELF (SEP. OP. AMMOUN) 134

in the determination or elaboration of the general principles of law,
contrary to what is improperly stated by Article 38, paragraph | (c/,
of the Court's Statute. The American delegate Root did well to suggest
to the Committee of Jurists in 1920 that the Court should apply, besides
treaty law and customary law, “‘the universally recognized principles of
Jaw’. Nonetheless, under the influence of ideas borrowed from The
Hague Conference of 1907, where the jurists of European allegiance
were dominant, he substituted for this formula that which was to appear
in Article 38, paragraph | (c), of the Statute, which has thus been inhe-
rited, as it were without beneficium inventarii, from concepts as anachron-
istic as they are unjustified. And over and above this, the particularly
docile line taken by international decisions, understood by “civilized
nations” those composing the ‘Concert of Europe”, from whose systems
of law alone they avowedly borrowed general principles of law by way
of analogy +.

If it is borne in mind particularly that the general principles of law
mentioned by Article 38, paragraph 1 fc), of the Statute, are nothing
other than the norms common to the different legislations of the world,
united by the identity of the legal reason therefor, or the ratio legis,
transposed from the internal legal system to the international legal system,
one cannot fail to remark an oversight committed by arbitrarily limiting
the contribution of municipal law to the elaboration of international law:
international law which has become, in short, particularly thanks to the
principles proclaimed by the United Nations Charter, a universal law
able to draw on the internal sources of law of all the States whose relations
it is destined to govern, by reason of which the composition of the Court
should represent the principal legal systems of the world.

In view of this contradiction between the fundamental principles of
the Charter, and the universality of these principles, on the one hand,
and the text of Article 38, paragraph | fc), of the Statute of the Court
on the other, the latter text cannot be interpreted otherwise than by
attributing to it a universal scope involving no discrimination between
the members of a single community based upon sovereign equality. The
criterion of the distinction between civilized nations and those which are
allegedly not so has thus been a political criterion,—power politics,—
and anything but an ethical or legal one. The system which it represents
has not been without influence on the persistent aloofness of certain
new States from the International Court of Justice °.

It is the common underlying principle of nationaj rules in all latitudes
which explains and justifies their annexation into public international
law. Thus the general principles of law, when they effect a synthesis and
digest of the law in foro domestico of the nations—of all the nations—

' See in particular the decisions of the Permanent Court of Arbitration of 11
November 1912 in the Russian Indemnity case and of 13 October 1922 in the Nor-
wegian Shipowners Claim case.

2 Cf. W. Jenks, The Connon Law of Mankind, p. 79.

135
CONTINENTAL SHELF (SEP. OP. AMMOUN) 135

seem closer than other sources of law to international morality. By being
incorporated in the law of nations, they strip off any tincture of national-
ism, so as to represent, like the principle of equity, the purest moral
values. Thus borne along by these values upon the path of development,
international law approaches more and more closely to unity.

To conclude this account, it appears that the Court, when quoting,
as necessary, paragraph 1 (c) of Article 38, could omit the adjective
referred to, and content itself with the words “the general principles of
law recognized by . . . [the] nations”; or could make use of the form of
words used by Sir Humphrey Waldock in his address of 30 October 1968,
namely: “the general principles of law recognized in national legal
systems”. One might also say, quite simply: ‘the general principles of
law’; jurists, and even law students, would not be misled. All this
pending the revision of the Court's Statute, or certain of its provisions,
being put in hand.

*
* *

34. The meaning of Article 38, paragraph I (c), of the Statute of the
Court having thus been restored, it is possible to give an adequate reply
to the question raised: Is there a general principle of law recognized by
the nations from which would follow a rule to the effect that the con-
tinental shelf could be delimited equitably between the Parties?

In their addresses of 30 October 1968, the Netherlands and Denmark
stressed that they were not aware of any decision supporting the idea
of the application of a general principle recognized by national systems
which was in contradiction with positive law.

This objection has been amply answered by showing that the equi-
distance method does not constitute a rule of positive law. There is, in
the circumstances, a lacuna which is to be filled practer legem and not
contra legem, by inferring a general principle of law recognized in national
legal systems.

It cannot in fact be denied that an international court, by progressively
diverging from the thesis of the formal or logical plenitude of inter-
national law, contributes to the remedying of its insufficiencies and the
filling-in of its lacunae. It is true that the Court is bound, by virtue of
Article 38 of the Statute, “to decide in accordance with international law
such disputes as are submitted to it”. But the law to which the text refers
does not have the limited meaning, confined to treaties and custom, often
given to the term “law” |. The provision of the Article mentioned above,
according to which the Court shall apply “the general principles of Jaw
recognized by ... [the] nations” conflicts with the voluntaristic point of

1 As was pointed out by the American-Norwegian Tribunal in 1922 in the
Norwegian Shipowners’ Claim case.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 136

view—which was that of the Judgment of the Permanent Court of Inter-
national Justice of 7 September 1927 in the Lotus case—and expressly
authorizes the Court, which it directs to use the method of analogy, to
draw the legal norms from sources other than those founded on the
express or tacit consent of States.

Inarenewed effort by Romano-Mediterranean legal thinking, breaking
the chrysalis of outgrown formalism which encompasses it, international
law at the same time tears apart its traditional categories, though it be
slowly and bit by bit, in order to open the door to political and social
reality in a human society which no longer recognizes any exclusive
domains.

35. In order to pronounce on the propriety of the application of this
or that method with a view to an equitable and just delimitation of the
continental shelf, there would, failing a legal obligation requiring the
use of one or other method, be need to have recourse ultimately to equity,
State practice having referred thereto more than once.

For if there is a principle recognized by the municipal law of the
community of nations which demands adoption by analogy into inter-
national law as a general principle of law, at least as much as so many
others which it has already borrowed, it is clearly the principle which
nominates equity as the basis of law and as the objective of its implemen-
tation.

The general principles of law are indisputably factors which bring
morality into the law of nations, inasmuch as they borrow from the law
of the nations principles of the moral order, such as those of equality,
responsibility and faute, force majeure and act of God, estoppel, non-
misuse of right, due diligence, the interpretation of legal documents on
the basis of the spirit as well as of the letter of the text, and finally equity
in the implementation of legal rules, from which derive the principles of
unjust enrichment and enrichissement sans cause |, as well as good faith
“which is no more than a reflection of equity and which was born from
equity 2”,

* a

! French case-law, which initiated the principle of non-misuse of right, clearly
drew inspiration from equity. See Judgment of the Cour de Cassation of 18 January
1892 which refers to “the action . .. based on the principle of equity which forbids
enrichment at the expense of another”.

The case-law of the Lebanon, before enrichissement sans cause appeared in its new
code of obligations, deduced the concept from the rules of equity of Majallar el
Ahkam. the Muslim code of civil law which was there in force.

+ Expression of K. Strupp, Course at The Hague Academy of International Law,
Recueil des Cours, 1930, Vol. HE, p. 462.

Cf. M. P. Fabreguettes, La logique judiciaire. p. 399, who writes: “In a higher legal
sense, equity (from aeguitas, from aequis, equal), is distributive justice, which forbids

137

CONTINENTAL SHELF (SEP. OP. AMMOUN} 137

36. It is not possible to have recourse simply to the concept of what
is reasonable, in preference to what is equitable.

The idea of the reasonable saw the light as long ago as in the writings
of the Romano-Phoenician jurisconsult Paul+. But the reasonable, if
it excludes the equitable, does not completely satisfy the mind. In the
way in which it is formulated, in time as in space, it has an element of
subjectivity, or even of relativity, which contrasts with the objective
nature of the equitable 7. Furthermore it may be wondered whether the
champions of the reasonable have in mind pure reason, or are referring
to practical reason. There is a difference, worthy of notice, between the
one doctrine and the other, namely that which separates the under-
standing from the moral law. Morality, it has been said, hovers around
the law; and one may add, with N. Politis and following Ulpian and
Cicero, that it should have dominion over it 3. In turning away from it,
international law condemns itself to sterility in face of a society bubbling
over with life. The normative school and its pure theory of law, in
rejecting the moral, social and political elements, described as meta-
juridical, become isolated from international realities and their progressive
institutions: ubi societas, ibi jus.

any respecting of persons, or being guided by reasons other than those of law.”

Cf. also Ch. de Visscher, Theory and Reality in Public International Law (trans.
P. Corbett. Princeton, 1957), p. 357, who in turn stresses that “‘it is significant that
in the ... cases in which members of the Court have expressly invoked ‘the gencral
principles’, they have done so under cover of some of the most elevated and most
general categories of the legal order, such as ‘justice’ or “equity’.”

See decision of 11 November 1912 of the Arbitral Tribunal in the Russian In-
demnity case, which refers to equity in order to assess the responsibility of a State,
and its implementation.

! P, Roubier, former Director of the Schoo! of Law of Beirut, Théorie générale du
Droit, p. 129.

2 It should be recalled that Plato and Aristotle, who were so to Speak reason
personified. offered justification for slavery, against all equity, and it was not defini-
tively condemned in the name of equality between man and man until the coming of
Christianity. Even then it was tolerated as reasonable up to the French Revolution.

Let it not be overlooked also that colonialism, so inequitable as between nations,
was considered reasonable by great Western jurists right up to very recent times. The
same could be said of the social and economic inequalities existing at all times and in
all places.

Finally public feeling in many very developed countries still finds it reasonable
that there should be inequality between wife and husband in the enjoyment or
exercise of certain civic, civil or family rights.

# N. Politis, in La morale internationale, p. 26, recalls the saying of Cicero, quid
leges sine moribus, and relates the moral basis of modern international law back to
Ulpian of Tyre, who was himself inspired, as P. Roubier observes (ibid., p. 128,
note 1) by that other Phoenician, Zeno, the founder of the stoic school, and his dis-
ciples Seneca and Marcus Aurelius, p. 51: honeste vivere, alterum non laedere, suum
cuique tribuere.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 138

37. Although international justice has generally not specified the
municipal sources of the general principles of law which it has derived,
when referring to a concept of such wide scope as equity, and one which
permits of more than one interpretation, as we have just seen, it is
important that the underlying elements thereof be specified: both in
time, by going back to legal traditions which have continued up to our
own day. and in space, by glancing rapidly over the various national
contributions.

Thus it appears legitimate to recall that Greek philosophy, which
has never been rejected by succeeding generations right down to our
own, already conceived of equity as a corrective to law in general. as
a form of justice better than legal justice, because the latter, in view of
its general nature, cannot always correspond perfectly to all possible
cases !, In the course of time, the concept of justice and equity has
become associated with that of law, whether justice be defined, as by
Ulpian of Tyre, as the intention to attribute to each what is rightfully
his 2, or as the art of that which is good and equitable *, or whether the
law should draw inspiration from the idea of justice and tend to its
realization *.

The just and equitable solution, in the sense given by Ulpian’s defini-
tion of law: jus est ars boni et aequi, is not to be confused with the faculty
possessed by the Court by virtue of Article 38 in fine to decide a case,
with the agreement of the parties, ex aequo et bono, in the sense which
modern law gives to that expression. It is in this sense that it had already
been taken in arbitration cases °. But above all it is appropriate to refer
to the Judgment of 28 June 1937 by the Permanent Court of Interna-
tional Justice in the Diversion of Water from the Meuse case between the
Netherlands and Belgium, as a precedent for the effective application
of equity within the framework of law, affirmed, if there were need for
this, by the individual opinion of Judge Manley Hudson °. The Permanent
Court thus preserved the spirit which had presided over the preparation
of its Statute, and which was expressed by the president of the Advisory

1 Aristotle, Nicomachean Ethics, quoted by G. del Vecchio, Philosophie du droit,
p. 282. See also K. Strupp, Course at The Hague Academy of International Law,
Recueil des Cours, 1930, Vol. HI, p. 462.

2 Ulpian: Justitia est constans et perpetua voluntas jus suum cuique tribuendi.

* Ulpian following Celsus: Jus est ars boni et aequi. Equity was in fact no stranger

to the jus civile: cf. P. Arminjon, B. Nolde and M. Wolff, Traité de droit comparé, p.528.

4 Since Accarias.

> The Award of 25 June 1914 by the arbitrator C. E. Lardy, in the dispute concern-
ing the boundaries in the Island of Timor, in which the arbitrator was requested by
the arbitration agreement to decide on the basis of the treaties and the general
principles of international law, stated as follows: “If one takes the point of view
of equity, which it is important not to lose from view in international relations . . .”

® Judge Hudson said ‘*... under Article 38 of the Statute, if not independently of
that article, the Court has some freedom to consider principles of equity as part of
the international law which it must apply”.

139
CONTINENTAL SHELF (SEP. OP. AMMOUN) 139

Committee of Jurists, Baron Descamps, in the statement which he made
at the second meeting, on 17 June 1920, where may be found the following
words: “If it is the duty of the judge to apply the law, where it exists,
we must not forget that equity is, in international as well as in national
law, a necessary complement of positive law ...” {Translation by the
Secretariat of the Advisory Committee. ]

Thus it is necessary to make a distinction between the principle of
equity in the wide sense of the word, which manifests itself, in the phrase
of Papinian, praeter legem, as a subsidiary source of international law
in order to remedy its insufficiencies and fill in its logical lacunae; and
the settlement according to independent equity, ex aequo ef bono, amount-
ing to an extra-judicial activity, in the expression of the same jurisconsult,
contra legem, whose role is, with the agreement of the parties, to remedy
the social inadequacies of the law.

*
* *

38. Incorporated into the great legal systems of the modern world
referred to in Article 9 of the Statute of the Court, the principle of equity
manifests itself in the law of Western Europe and of Latin America, the
direct heirs of the Romano-Mediterranean jus gentium; in the common
law, tempered and supplemented by equity described as accessory !; in
Muslim law which is placed on the basis of equity (and more particularly
on its equivalent, equality 2) by the Koran ? and the teaching of the four
great jurisconsults of Islam condensed in the Shari’a +, which comprises,
among the sources of law, the istihsan, which authorizes equity-judg-
ments; Chinese law, with its primacy for the moral law and the common
sense of equity, in harmony with the Marxist-Leninist philosophy °;
Soviet law, which quite clearly provides a place for considerations of
equity °; Hindu law which recommends “‘the individual to act, and the
judge to decide, according to his conscience, according to justice, accord-
ing to equity, if no other rule of law binds them ‘”’; finally the law of

1 See K. Strupp, Course at The Hague Academy of International Law. Recueil des
Cours, 1930, Vol. HI, p. 468.

2 Equity, as a principle of equality already perceived by the Phoenician-Roman
jurisconsults, is to be found even in the terminology of the law of Islam. English law
in turn was to say that ‘‘Equality is equity”.

> Among others, Sura IV, verse 61 and Sura V, verses 42 and 46: “‘If thou judge,
then judge with fairness and equity.”

* See Majallat el Ahkam, Arts. 87 and 88, which implement the principle of
equality mentioned in the note above.

> Cf. Chan Nay Chow, La doctrine du droit international chez Confucius, emphasiz-
ing the virtue of equity in the social, economic and judicial field, as well as on the
international level, pp. 50, 51, 55, 56 and 60. Cf. also René David, Les grands
systémes de droit contemporain, pp. 534 and 540.

$ René David, ihid., p. 122.
7 Ibid., p. 152.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 140

the other Asian countries, and of the African countries, the customs of
which particularly urge the judge not to diverge from equity! and of which
“the conciliating role and the equitable nature *” have often been under-
valued by Europeans; customs from which sprang a jus gentium con-
stituted jointly with the rules of the common law in the former British
possessions, the lacunae being filled in “according to justice, equity and
good conscience ?; and in the former French possessions, jointly with
the law of Western Europe, steeped in Roman law.

A general principle of law has consequently become established, which
the law of nations could not refrain from accepting, and which founds
legal relations between nations on equity and justice +.

*
* *

39. A series of acts translates this concept onto the factual plane,
so as to derive therefrom the rule governing the delimitation of the
continental shelf. These are the Truman Proclamation, the proclamations
of the numerous States of the Arabian-Persian Gulf, those of Saudi
Arabia, fran and Nicaragua. These States, with the exception of the
United States, did not form part of the Concert of Nations which used
to monopolize the privilege of elaborating law for the whole of the
international community. Their role in one of the most important
problems of the law of the sea deserves to be taken note of.

According to the terms of the American Proclamation, “in cases where
the continental shelf extends to the shores of another State, or is shared
with an adjacent State, the boundary shall be determined by the United
States and the State concerned in accordance with equitable principles *”.
Saudi Arabia, for its part, provided that the boundaries of the areas of
the subsoil and seabed over which it proclaimed its sovereignty would
be determined in accordance with equitable principles °. The Arab States
of Bahrain, Qatar, Abu Dhabi, Kuwait, Dubai, Sharjah, Ras al Khaimah,
Umm al Qaiwain, and Ajman refer for the delimitation of their areas
in the Arabian-Persian Gulf, to the principle of equity and of justice ?.
Finally, for the Iranian Empire, “if differences of opinion arise over the

1 Cf. T. O. Elias, The Nature of African Customary Law, p. 272; and M. Gluck-
man, The Judicial Process Among the Burotse of Northern Rhodesia, pp. 202-206.

- René David, Les grands systèmes de droit contemporain, p. 572.

3 Jbid., p. 568. This formula has been interpreted by English judges as referring to
the common law.

* Cf. Sir Hersch Lauterpacht, The Development of International Law by the Inter-
national Court, p. 213: “Adjudication ex aequo et bono is a species of legislative
activity. It differs clearly from the application of rules of equity in their wider sense.
For inasmuch as these are identical with principles of good faith, they form part of
international law as, indeed, of any system of law.”

5 Proclamation of 28 September 1945.

6 Royal pronouncement of 28 May 1949.

7 Successive proclamations of 5, 8, 10, 12, 14, 16, 17 and 20 June 1949.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 141

limits of the Iranian continental shelf, these differences shall be solved
in conformity with the rules of equity ?”. / English translation from Reply,
Annex, Section A. 16, p. 449.)

No State is to be found, on the other hand, whatever method of
delimitation it may itself have used, which opposes this concept based
on equity to resolve the problem of the determination of the boundaries
of the continental shelf between adjacent or opposite States, and this
throughout the whole pre-convention period, up to 1958, the date on
which this same concept seems to have been accepted by the Geneva
Convention.

It is true that Saudi Arabia and Bahrain, after having referred to the
principle of equity in their respective proclamations of 28 May and
5 June 1949, had recourse, in an Agreement of 22 February 1958, to
delimitation on the basis of the median line, taking into account, of
course, the special geographic circumstances of the region. Nonetheless,
the earlier declarations have not ceased to remain in force, and the
Agreement of 22 February 1958 is to be considered as an application of
the principle of equity upon which depends the solution of the problem
of the delimitation of the continental shelf.

*

Is not the conclusion therefore justified, to round off the enumeration
of those international acts which refer to equity, that these acts constitute
applications of the general principle of law which authorizes recourse
to equity praeter legem for a better implementation of the principles and
rules of law? And it would not be premature to say that the application
of the principle of equity for the delimitation of the areas of the conti-
nental shelf in the present case would thus be in line with this practice

*
* *

40. In addition, the adoption by the Geneva Convention of the median
line and the equidistance line, subject to possible special circumstances,
appears to be a similar equitable solution, to which recourse was had in
order to preserve the authority of the principle of equity by a sort of
compromise, inspired in fact by the conclusions of the study undertaken
by the Committee of Experts appointed in 1953 by the International
Law Commission, concerning the régime of the territorial sea. The five
solutions put in first place by this study were rejected for reasons which
were not unconnected with concern for legal precision or for equity.
When it began to discuss the equidistance rule, the International Law
Commission had remarked that in certain cases it would not permit an
equitable solution to be attained. [t was thus that it was qualified by the

1 Decree of 10 May 1949 and Act of 19 June 1955.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 142

condition concerning special circumstances, and finally extended to
delimitation of the continental shelf. The commentary of the Commission
also explains that the equidistance rule may be departed from when this
is necessitated by an exceptional configuration of the coast !.

*
* *

41, The teaching of legal writers has not been any less loyal than
State practice to this moral concept of law. The notion of justice and
equity is to be found in the writings of the publicists ?, as also over the
names of the numerous jurists in the travaux préparatoires of the Geneva
Convention; to which should be added the proceedings of the Ad Hoc
Committee set up in 1967 by the United Nations to study the peaceful
uses of the seabed and ocean floor +.

International decisions have in turn had occasion to refer to the
principle of equity praeter legem ‘4.

Thus it is permissible to conclude that all these manifestations of
legal thinking finally merge in the framework of a normative legal concept,
the principle of equity.

1 Report of the International Law Commission on the proceedings of its eighth
session, p. 24, commentary 1 on Article 72, which became Article 6.

2 One might quote among others: B. S. Murty, in Manual of International Law,
edited by M. Sorensen, p. 691: ‘Equity, in the sense of general rules dictated by
fairness, impartiality and justice, may be said to form part of international law,
serving to temper the application of strict rules, and a tribunal may include equity,
in this sense, in the law it applies, even in the absence of express authorization.”

Ch. de Visscher, Theory and Reality in Public International Law (trans. P. E. Cor-
bett, Princeton, 1957), p. 336: “Equity can be something other than an independent
basis of decision, as when, in a decision which in other respects is founded on
positive law (infra legem), the judge chooses among several possible interpretations
of the rule the one which appears to him, having regard to the particular circum-
stances of the case, most in harmony with the demands of justice. ... Clearly the
requirement of special agreement between the Parties does not refer to this neces-
sary function of equity.”

Also C. W. Jenks, The Prospects of International Adjudication, 1964; Bin Cheng,
“Justice and Equity in International Law’, in Current Legal Problems, 1955,
pp. 185 ff.; O’Connel, International Law, 1965, Vol. I, p. 14, cited in the Reply.

3 Report of the Ad Hoc Committee to the General Assembly, pp. 18, 46-47, 63-64.

4 The Anglo-Turkish Arbitral Tribunal, in the case of W. J. Armstrong & Co.
Ltd. v. Vickers Lid. (1928) placed on the basis of rules of equity the general principle
of law, accepted by international law, forbidding unjust enrichment.

The Franco-Venezuelan Mixed Commission, in the Frederick & Co. case (1902),
assimilating equity with equality under the inspiration of Roman law, expressed
itself as follows: “If the conditions on both sides are regarded as producing an
equilibrium, justice is done.” This is also a concept of Muslim law (supra, note 1,
p. 136).

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 143

42. The principle of equity having been accepted, there are two ques-
tions to be examined:

(a) Although the equidistance method has been discarded as not binding
the Federal Republic of Germany either by agreement, or by the
effect of an international custom, can the equidistance line, strictly
applied, that is to say, without any modification whatsoever, as
desired by the Kingdoms of the Netherlands and Denmark, constitute
a solution of the case submitted to the Court as meeting the require-
ments of equity?

(5) In the case of a negative answer, what 1s the rule flowing from the
principle of equity which would effect a just and equitable delimita-
tion of the areas of the North Sea continental shelf appertaining to
the Parties?

* * *

43, Can the strict equidistance line be envisaged as an equitable method
of delimitation as applied to the present issue?

The Federal Republic is justified in rejecting, as not in conformity
with equity, the delimitation of its continental shelf according to the
strict equidistance method.

That much has been demonstrated by the Federal Republic by pointing,
on the one hand, to the map showing the delimitation of the three areas
of the continental shelf in conformity with the equidistance method,
based upon the baselines of the territorial seas of the Parties and, on
the other hand, to the map showing the delimitation as it would result
on the assumption that the equidistance lines took their departure from
coasts free of irregularities. The junction of those lines. as occurring
towards the middle of the North Sea, illustrates the considerable differ-
ence as between the two hypotheses. Expressed in figures, this demonstra-
tion, as appears from the text and figures 2 and 21 of the Memorial,
would give something like 23,600 square kilometres in the first instance
and 36,700 square kilometres in the second}. The Federal Republic
adequately demonstrates that the share which would fall to it would
thus be reduced to a small fraction of the continental shelf such as would
not correspond to the extent of its territory’s contact with the North
Sea and would be out of all proportion to the respective lengths of
coastal frontage of the Parties.

Let it be for an instant imagined, for the sake of argument, that the
Federal Republic of Germany had had the possibility, like the Nether-
lands, of reclaiming areas from the high seas to such a point that the
entire concavity of the coast had been filled in. Would not the equidis-
tance lines have produced quite a different result, and one of which
the Federal Republic would have had no reason to complain?

1 Memorial, para. 91, subject to the sector theory and its effect on the area.
Figure 2, p. 27. Figure 21, p. 85.

144
CONTINENTAL SHELF (SEP. OP. AMMOUN) 144

Moreover, the Court cannot be averse to having recourse to the
travaux préparatoires of an international document if they are such as
to cast further light on the questions of international law which are to
be resolved. An examination of the circumstances in which the equidis-
tance method of Article 6 of the Convention on the Continental Shelf
was adopted shows in fact that the strict equidistance line claimed by
Denmark and the Netherlands has been judged to be inequitable in a
number of cases. If reference is made to the records of the 1958 Con-
ference, and if one goes as far back as the report and minutes of the
International Law Commission and the report of the experts appointed
in this connection in 1953, the role of equity in the decision to couple
the equidistance line with the mention of special circumstances which
was taken by the States assembled in Geneva will become apparent.

It was in fact the consideration of certain factors which led the Com-
mittee of Experts, and subsequently the International Law Commission,
to arrive at the notion of special circumstances, with a view to mitigating,
if need be, the inequitable consequences of the equidistance method,
based upon the baselines serving for the delimitation of the territorial
sea, which they had decided to adopt. The Committee of Experts, re-
maining within its terms of reference, made a point, when introducing
the notion of special circumstances, of drawing attention to the fact that
the equidistance method could fail to produce an equitable solution.
And, during the discussions at the Geneva Conference, there were many
representatives of the countries taking part who stressed this view '. The
Court cannot do otherwise.

# x

44. At the end of this reasoning, it should be recalled that the Federal
Republic of Germany, after having asked the Court, in its written
pleadings and oral arguments, to declare that the equidistance method
is not applicable to the case and, as a subsidiary point, that there exist
special circumstances which exclude its application, contended that the
Court should therefore refer the Parties back to negotiate an agreement
with a view to another delimitation, taking into account the guide-lines
which it would supply. And the Federal Republic submitted that the
delimitation on which the Parties are to agree is to be determined by the
principle of the just and equitable share, by reference to the criteria
applicable to the particular geographic situation of the North Sea.

The Kingdoms of the Netherlands and Denmark retorted that, in view
of the terms of the Special Agreements, such a decision would be nothing
more than a non liquet.

Explaining his line of thought more precisely, the representative of the
Federal Republic said, during the second round of speeches, that he

1 Memorial, para. 70.

145
CONTINENTAL SHELF (SEP. OP. AMMOUN) 145

was not asking what boundaries should be drawn, but that guide-lines
be given concerning the principles to be applied. And the representative
of Denmark stressed that the Federal Republic was leaving it entirely
to the Court to find out what might be the consequence of the clause
of special circumstances possibly being applicable !.

In fact, after having excluded the application of the equidistance line
pure and simple and having established the existence of special circum-
stances, to refer the Parties to the negotiation of an agreement which
would attribute to each of them an equitable share of the continental
shelf is not to determine the principles and rules applicable to the delimi-
tation of the areas of the continental shelf, which are referred to in the
Special Agreements. A decision limited in this way would amount to the
determining of the objective aimed at, without any mention of the means
of attaining it. It would not have satisfied the letter of the Special Agree-
ments any more than the spirit thereof.

*

45. Besides, to do no more than declare that agreement should be
reached on an equitable delimitation is not to resolve the question, for
the Parties may well be divided as to what is an equitable delimitation
and as to the means of determining it. The Court should therefore, after
having first excluded the application of the equidistance line as a rule
of law, state the rule which is capable of being adopted by application
of the principle of equity.

The Geneva Convention provided a rule embodying the equidistance-
special circumstances method. It was for the Court, in rejecting this
treaty rule in the relationships between the Parties, to replace it by
another serving the same purpose, deduced from equity as a general
principle of law. What the Convention did, the Court can do.

The Court could in addition refer, as a judicial precedent, to the
Judgment which it gave on 18 December 1951 in the Anglo-Norwegian
Fisheries case, which laid down the rule of straight baselines for the
determination of the outer limit of the territorial sea. It will be seen
subsequently that a solution also based on a straight baseline is the one
which may constitute the rule to be derived from the principle of equity.
By so doing the Court would not have overstepped the limits of its
jurisdiction as already fixed by it.

*
* *

46. Furthermore it may be observed that the Federal Republic’s claim
for an apportionment—rather than a delimitation—of the areas of the

1 Hearing of 8 November 1968.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 146

continental shelf between coastal States is not in accordance either with
the letter of the Special Agreements, or with the definition of the con-
tinental shelf.

This idea is to be found, it is true in a treaty precedent, the agreement
between France and Switzerland of 25 February 1953 on the delimitation
of the Lake of Geneva. According to the terms of this agreement, the
median line is replaced by a polygonal line “with a view to effecting a
compensation as between the areas”. But this is a unique case where
free play was given to voluntary agreement. It does not fit in with the
definition of the continental shelf, which rests, as has been stated! on
the principle affirmed by the International Court of Justice in its Judg-
ment of 18 December 1951 already referred to, to the effect that “‘it is
the land which confers upon the coastal State a right to the waters”.
What is inherent in this definition is the right to the prolongation of the
national territory under the waters. The idea of equity and justice is
thus realized by taking into consideration, for each Party, the extent
of the link between the land and the waters, the coastal State’s right and
the equitable limit of its claim being a function of the land factor.

*
* *

47. In the words of the Judgment, paragraph 85 (a): “the Parties
are under an obligation to enter into negotiations with a view to arriving
at an agreement, and not merely to go through a formal process of
negotiation as a sort of prior condition for the automatic application of a
certain method of delimitation in the absence of agreement; they are un-
der an obligation so to conduct themselves that the negotiations are
meaningful, which will not be the case when one of them insists upon
its own position without contemplating any modification of it...”.

The Judgment justifies such a obligation in paragraph 86, by saying
that ‘not only... the obligation to negotiate which the Parties assumed
by Article 1, paragraph 2, of the Special Agreements arises out of the
Truman Proclamation, which, for the reasons given in paragraph 47,
must be considered as having propounded the rules of law in this field,
but also... this obligation merely constitutes a special application of a
principle which underlies all international relations, and which is more-
over recognized in Article 33 of the Charter of the United Nations”.

And the Judgment goes on, in paragraph 87: “so far therefore the
negotiations have not satisfied the conditions indicated in paragraph
85 (a)”.

I dispute that there is such an obligation in the present case. It cannot
be inferred from the Truman Proclamation, nor yet from Article 33 of
the Charter, which concerns disputes the continuance of which is likely
to endanger the maintenance of international peace and security, and is

1 Supra, para. 16.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 147

the less imperative inasmuch as it empowers the Security Council “when
it deems necessary, [to] call upon the parties to settle their dispute by
such means”.

In any event, a submission that there was an obligation to negotiate,
and that the negotiations carried out “were not meaningful”, would
amount to a prejudicial objection to the hearing of the case. The Judg-
ment should therefore have followed its reasoning right through, i.e.,
the Court, after having drawn the attention of the Parties to the question
in its legal and practical aspects, should give judgment on the objection
before turning to the merits.

However, I undeistand the Judgment as considering that the negotia-
tions had simply been suspended in face of the difficulties which had been
encountered, in order to be re-opened and completed in the light of the
indications to be given by the Court.

*
* *

48. The strict equidistance method having been discarded because it
does not constitute an equitable solution appropriate to all cases, and
particularly to that submitted to the Court, one must enquire what rule
should be deduced from the principle of equity with a view to the delimi-
tation in question.

*

49. One preliminary clarification is perhaps not unnecessary: the
words principle and rule are no more synonymous in legal than in philo-
sophical Janguage. The Court has however not always made this distinc-
tion. Thus the wording of the Special Agreements, where these terms are
used cumulatively, cannot be criticized as being tautological. It is from
the principle, defined as being the effective cause, that the rules flow. It
is therefore necessary, after having gone back to the principle, namely
equity, to state what rules applicable to the matter can be deduced from it.

*

50. Several methods were debated in the course of the proceedings.

The first, adopting as basis the notion of sectors converging to the
approximate centre of the North Sea, presupposes that the three areas
of the continental shelf of the south-west coast ought necessarily to
reach the median line between the continent and the British Isles, which
however is anything but proved. In fact, the question being that of
determining the lateral boundaries between the areas of continental
shelf of each of the Parties, the Court should confine itself to the solution
of this question, without concerning itself with the question whether the
demarcation lines thus ascertained will reach the median line, or will meet

before reaching it.
*

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 148

51. The second method, which has been adopted by the majority of
the Court in order to be proposed to the Parties simply as a factor for
them to assess, is that based on the relationship between the length of the
coast and the extent of the areas of continental shelf.

Although this does not refer to any sort of practice',it starts from the
idea of natural prolongation of the land territory, and implies the realign-
ment, in the form of a single straight baseline, of the concave coast of the
Federal Republic of Germany.

It could nonetheless be criticized, in its practical application, for
failing to avoid overlappings of one sector of the continental shelf over
another at some distance from the coast. It would thus appear to entail
acceptance of parts of the continental shelf constituting the prolongation
of more than one territory. This hypothesis is vitiated by an internal
contradiction, for an area of land can only be the prolongation of a
single tertitory. Furthermore, for this common sector, the Court recom-
mends division into equal shares. But is this not a return to the solution,
which has already been rejected, of apportionment into just and equitable
shares, according to the terms used by the Federal Republic of Germany?

Lastly, this method determines surface areas, but does not assist in
drawing lateral boundaries, which are exactly the problem which is to be
resolved: is their meeting-point to be shifted somewhat towards Denmark
or towards the Netherlands?

52. A third method, that of equidistance-special circumstances, is
the one which seems to me to be the rule to be applied. This method,
which was rejected as not being a rule of treaty law or customary law,
may be re-adopted by virtue of a general principle of law, namely equity.

The explanations which follow will show that recourse can be had to
the equidistance method if the application thereof is subordinated, in
appropriate cases, with a view to the preservation of equity, to the effect
of special circumstances. The question which will arise will therefore
be whether there exist such circumstances in this case. In that event the
equidistance-special circumstances rule deduced from the principle of
equity praeter legem could be proposed to the Parties.

*

53. Special circumstances have not been defined by a text of positive
law; nor could they be listed exhaustively, in view of the extreme variety
of legal and materiai factors which may be of account.

Nonetheless, if reference is made once again to the travaux préparatoires

1 In particular the precedents mentioned in para. 26.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 149

which have been mentioned, there is nothing to show that the notion of
special circumstances was limited in the way in which the representatives of
Denmark and the Netherlands would have it. On the contrary, the
International Law Commission, upon the report of the experts which
it had appointed, stated in its commentary on Article 72 of the draft
which it presented to the conference and which there became Article 6
that there might be “... departures (sc., from the equidistance rule)
necessitated by any exceptional configuration of the coast, as well as the
presence of islands or of navigable channels...” and the International
Law Commission went on: “... This case may arise fairly often...”

In short, a special circumstance affecting the equidistance method
may be the effect of a particular legal situation: a treaty, or historic
waters. It may also be the consequence of geographical considerations.
On the basis of the map and measurements already mentioned ', the
configuration of the coast of the Federal Republic of Germany constitutes
such a circumstance, which should be taken into account to avoid the
inequitable application of the equidistance line pure and simple.

No mention was made, on the other hand, of economic objectives,
such as the unity of deposits, with a view to the examination thereof by
the Court. In any case, any consideration of submarine resources,
referred to in the course of the proceedings, is irrelevant. To adopt as
basis in order to draw up boundaries, among other factors, the riches
secreted by the bed of the sea, would amount to nothing less than an
apportionment of the continental shelf, whereas all that is in question is
a delimitation of the areas originally appertaining to the coastal States,
as has already been stated ?. In addition, since potential riches will for
a long time hence go on being discovered unceasingly, such delimitation,
faced with a deposit overlapping two areas, would continually be subject
to rectification. Consequently, if the preservation of the unity of deposit
is a matter of concern to the Parties, they must provide for this by a
voluntary agreement (by transfer or joint exploitation), and this does
not fall within the category of a factor or rule of delimitation.

*

In addition, the following passage from paragraph 69 of the Judgment
should be stressed: “Such a rule (sc., the equidistance-special circum-
stances rule) was of course embodied in Article 6 of the Convention, but
as a purely conventional rule.” But if the equidistance-special circum-
stances method can, on the Court’s own admission, amount to a rule
of conventional law, it can also constitute such a rule, as a matter of
logic, by virtue of the principle of equity. The Court, which is called

1 Supra, para. 43.
2 Supra, para. 46.

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CONTINENTAL SHELF (SEP. OP. AMMOUN) 150

upon to state principles and rules, after having adopted the principle
of equity, should, in my opinion, therefore have deduced therefrom the
rule of equidistance-special circumstances.

+

54. The equidistance-special circumstances rule flowing from a general
principle of law, namely equity, having been accepted, and it having been
established that in the present case there exists a special circumstance,
what would the effect of this circumstance be on the equidistance line?

The idea which would seem to constitute the point of departure is that
which follows from the nature of the shelf: since this is geologically the
prolongation of the territory, starting from the coastal front, as has
already been explained in the considerations concerning the concept of
the continental shelf !, it is this front which forms the basis of the shelf
extending under the high seas.

An attempt has been made to justify the contiguity criterion and thus
the equidistance line as an imperative rule of international law by pointing
out that the geographical realities of the actual coastline are the basis
for the determination of the extent in space of the sovereign rights of
the coastal State 2. But what are these geographical realities, if they are
not the actual coastline, or the coastal front, extending under the waters
of the high seas, without the front or coastline being affected by the
depressions in the surface which merely modify the line along which
they break surface.

The front must thus not be understood as meaning the coast with its
more or less pronounced bends on the waterline, these irregularities being
the result of a subsidence or sloping of the land below the level of the
sea. They are not such as should modify the line which the front would have
followed if it had not been affected by such geological accidents. Con-
sequently, the corrugations of the bases of the shelf must not influence
the latter’s natural configuration by modifying any co-ordinates thereon
established.

55. What would the front look like as thus understood?

It is by having recourse, by way of analogy, to the method of delimiting
the territorial sea based on the straight baselines sanctioned by the Court’s
Judgment of 18 December 1951 in the Anglo-Norwegian Fisheries case,
that the solution might be found. Such resort to analogy is justified on
account of the identity of ratio legis, or again on account of the similarity
of the essential elements in the two sets of circumstances, namely the

1 Supra, para. 15.
2 Address of 31 October 1968 on behaif of the Netherlands.

15]
CONTINENTAL SHELF (SEP. OP. AMMOUN) 151

jagged and indented nature of the two coasts, and the economic factor
which is present in both cases 1.

The solution envisaged would be no more contrary to the principles
or rules of international law than the Norwegian Decree of 12 July 1935
delimiting the territorial sea on the basis of straight lines following the
general direction of the coast and linking fixed points located on terra fir-
ma or on adjacent islands. However, the configuration of the German
coast possessing, as it does, the form of a bay, it is the drawing, as in the
case of open bays, of a single straight baseline along the coast that would
be called for; its line of opening would not necessarily be restricted to a
pre-ordained length, as the above-mentioned Judgment of the Court
stipulated for bays in general. It will in this connection be recalled that
there has been a proposal to apply this rule to indentations ? and troughs 3
forming interruptions in the bed of the continental shelf.

This solution is all the more acceptable because it does not involve
either internal waters or the territorial sea; it does not affect the con-
figuration of the latter, as the waters seaward thereof but landward of
the straight baseline will not cease to form part of the continental shelf
and will remain subject to the régime governing the shelf.

As applied to the German coast, the straight baseline would extend
from one of its extremities to the other and would thus completely
obliterate its concavity.

The Netherlands and Danish coasts would be maintained as they are,
in view of the fact that, from the points of their respective intersections
with the German coast, they follow a straight course free of dispropor-

tionate projections.
*

56. The bases for the delimitation of the continental shelf as between
the Parties having been determined, how should the lateral boundaries be
fixed?

It was said above that the Geneva Convention on the Continental
Shelf did not depart from the notion of equity in adopting the equi-
distance line accompanied by the condition referring to special circum-
stances.

It is therefore as a solution based on equity that recourse may be had
to the equidistance-special circumstances rule for the purpose of deter-
mining the lateral boundaries of the continental shelf as between the
Parties to the dispute.

It is all the more justifiable to recommend the application of the

1 Article 4 of the Geneva Convention on the Territorial Sea, which concerns
straight baselines, is based upon economic interests, which are even more prominent
in the case of the continental shelf. Cf. L. Cavaré, Droit international public, Vol. I,
p. 231.

2 Geneva Conference, Prep. docs., p. 44, para. 37.

3 R. Young, cited by L. Cavaré, Droit international public, Vol. Il, p. 235.

152
CONTINENTAL SHELF (SEP. OP. AMMOUN) 152

equidistance rule, starting from straight baselines, in that Denmark and
the Netherlands are parties to the 1958 Geneva Convention on the Con-
tinental Shelf and because the Federal Republic of Germany, with-
out asking for the application of this method, has not rejected it to the
extent that it ensures an equitable solution !.

Jn a normal case, that is to say one not involving special circumstances,
the equidistance lines would have been made up of the points nearest to
the baselines from which the breadth of the territorial sea is measuied.
In the present case, it is by taking as the starting-point the intersection
of the straight baselines marking the coastal fronts of the Federal Republic
and Denmark, with due regard for the partial delimitation agreed upon,
that the equidistance line between the respective continental shelf areas
of those two States could be fixed; and it is by taking as the starting
point the intersection of the said baseline of the Federal Republic and
that of the Netherlands, that the equidistance line between the two latter
States, again with due regard to the agreed partial delimitation, could be
fixed. This would be done in two separate operations. The area appertain-
ing to the Federal Republic would be contained between the two equi-
distance lines and would extend out to sea as far as then point of inter-
section.

Whilst bearing in mind the partial delimitations, reference may be
made to the attached map upon which the coastal front is shown in the
form of a straight baseline, the Danish and Netherlands coasts remaining
as they are, and which the cartographer has completed by adding (thin
full lines} the equidistance lines starting from the points of intersection
B and C and converging to their junction at the point A before reaching
the median line Great Britain-Continent.

*

To sum up, I am in agreement with the majority of the Court in
declaiing that the equidistance method provided for in Article 6, para-
graph 2, of the 1958 Convention, is not opposable as a rule of treaty-law
to the Federal Republic of Germany, and that this rule has also not up
to the present time become a rule of customary law.

On the other hand, I consider that recourse may be had to the equi-
distance method, qualified by special circumstances, as a legal rule
applicable to the case and derived from a general principle of law, namely
equity praeter legem.

Since the Court has, for the reasons which it has set forth, not con-
sidered that it should go as far as I have done, I have felt that I should,
with all the consideration to which it is entitled, and while supporting
the Judgment, append thereto the present separate opinion, covering the
points on which my reasoning has been different, or on which I have
come to a different conclusion.

(Signed) Fouad AMMOUN.

1 Reply, paras. 49, 65-67, 71, 74-76.
153