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ICJ North Sea Continental Shelf Cases, Separate Opinion of Judge Fouad Ammoun, ICJ Rep. 1969, at 1, 100 et seq.

Title
ICJ North Sea Continental Shelf Cases, Separate Opinion of Judge Fouad Ammoun, ICJ Rep. 1969, at 1, 100 et seq.
Content
4

INTERNATIONAL COURT OF JUSTICE

YEAR 1969

20 February 1969

NORTH SEA CONTINENTAL SHELF CASES

(FEDERAL REPUBLIC OF GERMANY/DENMARK; FEDERAL REPUBLIC OF GERMANY/NETHERLANDS)

Full text available at http://www.icj-cij.org/docket/files/51/5535.pdf

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46

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85. It emerges from the history of the development of the legal régime of the continental shelf, which has been reviewed earlier, that the essential reason why the equidistance method is not to be regarded as a rule of law is that, if it were to be compulsorily applied in all situations, this would not be consonant with certain basic legal notions which, as has been observed in paragraphs 48 and 55, have from the beginning reflected the opinio juris in the matter of delimitation; those principles being that delimitation must be the object of agreement between the States concerned, and that such agreement must be arrived at in accordance with equitable principles. On a foundation of very general precepts of justice and good faith, actual rules of law are here involved which govern the47delimitation of adjacent continent shelves-that is to say, rules binding upon States for all delimitations;- in short, it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles, in accordance with the ideas which have always underlain the development of the legal régime of the continental shelf in this field, namely:

(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 under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it;

(b)

the parties are under an obligation to act in such a way that, in the particular case, and taking all the circumstances into account, equitable principles are applied,-for this purpose the equidistance method can be used, but other methods exist and may be employed, alone or in combination, according to the areas involved;

(c)

for the reasons given in paragraphs 43 and 44, the continental shelf of any State must be the natural prolongation of its land territory and must not encroach upon what is the natural prolongation of the territory of another State.

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100

SEPARATE OPINION OF JUDGE FOUAD AMMOUN

Full text available at http://www.icj-cij.org/docket/files/51/5549.pdf

[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 delimitation 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 1; 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 3". This observation, coming from one of the Parties, is fraught with consequences, 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 sovereignty of the coastal State over the continental shelf 4 and as to its outer limits 5.

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120

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22. The Federal Government's delegation announced, as is mentioned in the minutes of the negotiations with the Netherlands Government dated 4 August 1964 2, 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 1 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 concerning 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 commitment.

An attempt has nonetheless been made to see in the treaties of 1 December 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 3-is numbered among the general principles of law accepted by international law as121forming 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 1, 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 declarations 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 delimitation 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 2”. It should also be remarked that the German-Danish treaty allegedly includes only one equidistance point, the terminal of the partial boundary 3.

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 4. Nor is this in fact the case as regards the provisions of the 1958 Convention concerning the equidistance line, which could naturally not acquire, by means of a recognition which for the purposes of argument122we will suppose to be efficacious, the status of a customary law rule which it does not possess 1.

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 Convention, i.e., the equidistance rule.

It is not therefore possible to interpret the treaties of 1 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 application of the equidistance line as contemplated in the Convention of 29 April 1958 on the Continental Shelf.

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1See 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).
2Report of the Ad Hoc Committee to the General Assembly of the United Nations, 1968.
3Address of 5 November 1968.
4Infra, para. 17.
5Infra, para. 7.
2Memorial, Annex 4.
3Majallat El Ahkam, Art. 100.
1Memorial, Annex 7.
2Advisory 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.
3Reply, para. 29.
4Counter-Memorial of the Danish Government, para. 24 and Counter-Memorial of the Netherlands Government, para. 25.
1Infra, paras. 24-30.

Referring Principles
Trans-Lex Principle: I.1.2 - Prohibition of inconsistent behavior
Trans-Lex Principle: IV.6.8 - (Re-) Negotiation agreement / clause (pactum de negotiando)
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