1 Judgment of Feb. 20, 1969 (Fed. Rep. of Germany/Denmark; Fed. Rep. of Germany/ Netherlands), [1969] I.C.J.Rep. 3; digested and excerpted in 63 A.J.I.L. 591 (1969).

2 Cf.Continental Shelf Convention, Art. 6 (1), 499 U.N. Treaty Series 311; T.I.A.S., No. 5578; reprinted in 52 A.J.I.L. 858 (1958).

3 The full text of Art. 6 is as follows: “(1) Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the meridian line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. “(2) Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.“

4 The application of Art. 6 would not necessarily have meant the application of the equidistance principle, since it is prescribed by Art. 6 only “in the absence of agreement, and unless another boundary line is justified by special circumstances.“

5 The following presentation is not strictly in accordance with the sequence or manner of the Court's reasoning, but does not seem to be at variance with it.

6 For the lack of clear distinction between these two sources, see Waldock, General Course on International Law, 106 Hague Academy, Recueil des Course 62 ff. (1962).

7 As an alternative method of reaching the same end, i.e., an equitable apportionment, in deviation from the equidistance line, and therefore in favour of the Federal Republic, the latter suggested either delimitation on the basis of a “coastal front,” i.e., a straight baseline joining the two ends of the inward curving coast, or generally “special circumstances,“ in analogy to the provision in Art. 6 of the convention. In other words the Federal Republic was willing to argue in terms of the basic equidistance principle, provided the normal method of delimitation was rejected in favour of “special circumstances.“

8 Par. 19.

9 De Visscher, Theory and Reality in Public International Law 182 (3rd ed. rev., Corbett trans., 1968). See also Bourquin, “Stabilité et movement dans l'ordre juridique international,” 34 Hague Academy, Recueil des Course 347, 415 (1938), who points out that custom cannot follow the social dynamism of an age with multiple and rapidly changing needs.

10 The Law of Nations 62 (6th ed., 1963).

11 This appears to come close to an acceptance of the difficult and controversial doctrine of jus cogens, but the Court denied any intention of pronouncing itself on the question of jus cogens.On the reservations aspect of the judgment, see Goldie, “Sedentary Fisheries and the North Sea Continental Shelf Cases,” 63 A.J.I.L. 536 et seq. (1969).

12 It is particularly noteworthy that Vice President Koretsky, one of the dissenters, should have considered the equidistance rule as a general principle of international law, since Soviet theory, which generally deprecates custom in relation to treaties, is even more strongly opposed to the recognition of “general principles of law” as a source of international law. See, for example, Lukashuk in Tunkin (ed.), Contemporary International Law at 186 (1969).

13 [1956] I.C.J. Rep. at 100; digested in 51 A.J.I.L. 410 (1957).

14 Private Law Sources and Analogies of International Law, par. 28 (1927).

15 The Permanent Court of International Justice 617 (1943), where the task of equity is described as being “to liberalize and to temper the application of law, to prevent extreme injustice in particular cases, to lead into new directions for which received materials point the way.“

16 “Contribution á l'Etude des Sources du Droit International,” 60 Revue de Droit International et de Législation Comparée 325, 414 et seq.(1933).

17 See, e.g., Diversion of Waters from the River Meuse (1937), P.C.I.J., Ser. A/B, No. 70; Cayuga Indians (Great Britain v.U. S.) (1926), Nielsen Rep. 203, 307; Sapphire- NIOC Arbitration, 13 Int. and Comp. Law Q. 987 (1964).

18 It might be noted that even in municipal law the borderline between a liberal interpretation of the existing law and a revision of the law is not always easy to draw. Thus, Art. 242 of the German Civil Code prescribes that legal obligations are to be performed in good faith. During the inflation of the early Twenties, which reduced the value of the Mark to an infinitesimal fraction of its former value, with the consequence that mortgagors, insurers and other debtors could discharge their obligations at purely nominal cost, the German courts proceeded to use this clause for a revision of obligations. This judicial reform was subsequently (after the reform of the currency) consolidated by a revaluation statute.

19 Cf.the observation of Judge Lachs (dissenting) that “if the notion of special circumstances is to be taken to imply a slanting reference to comparative bases, a much wider spectrum of factors should be taken into account—e.g., the comparative wealth and economic potential of the States concerned.“

20 U.N. Doc. A/6697 (1967).

21 For a critical survey of recent proposals for sweeping national extensions of continental shelf rights, notably that of the U. S. National Petroleum Council, see Henkin, , “International Law and ‘the Interests': The Law of the Seabed,” 63 A.J.I.L. 504-510 (1969)Google Scholar. See further, Finlay, 64 ibid.42 (1970), and Henkin, ibid.62.