Images and Models in the World Court: The Individual Opinions in the North Sea Continental Shelf Cases
| Date | 01 November 1978 |
| DOI | http://doi.org/10.1111/j.1468-2230.1978.tb01493.x |
| Published date | 01 November 1978 |
| Author | J. G. Merrills |
IMAGES AND MODELS IN
THE
WORLD COURT:
THE
INDIVIDUAL OPINIONS IN
THE
NORTH SEA CONTINENTAL
SHELF
CASES
DECISIONS
of
the International Court
of
Justice, though relatively
fav
in number, are generally the subject of extensive commentary
and analysis. The separate and dissenting opinions of individual
judges, which lak the authonity
of
the Court’s pronouncements,
usually receive rather less atltention. Yet these opinions, rich
in
material
on
all aspects
of
international law, often provide striking
insights into both the nature
of
legal reasoning and the contrasting
philosophies
of
law whlich account (for ithe controversial character
of
so
much
of
the Court’s work.
The aim of what follows is to examine the individual opinions
in
the
North
Sea
Continental Shelf
cases for evidence of what
Professor Schwarzenberger has termed
“
images
”
and
“
models
”
of
international law.2
“
Images
”
are conceptions
of
concrete situa-
dons
lurking behind proposals for solutions to general problems;
“
models
”
the mental constructs
of
the world we employ to organise
our thinking about international law.
Thus
“
when mature scholars
argue general or particular propositions, they are likely to do
so
not only against the backtground
of
their imagery, but also against
that
of
their subconscious
or
undisclosed models extending to the
whole or considerable portions
of
their subject.” Images and
models shdd, it is said, be identified and expsed; images, because
they can seriously prejudice the solution
of
general problems, since
“
they may well be unfairly selective illustrations which,
for
one
or
other
reason,
have particularly impressed themselves
on
our minds,
and they may have to be supplemented
by
others which may reveal
facets
of the problem not covered by our favourite pictures”‘;
models, because their analysis enables divergent opinions to be
classified and understood.
If
Schwarzeaberger’s thesis is correct, we may expect to find in
the individual opinions in the
Continental Shelf
cases
various
im-
plicit models of international law, together with some at least
of
each judge’s dominant images, the exposed elements,
so
to speak,
of
a largely submerged phenomenon. First, however,
it
is
necessary
to say something about the issues in the
case
and the judgment
of
the
Court.
1
North Sea Continentcl Shelf,
Judgment 119691
I.C.J.Rw.
3.
For
commentary
see
Jennings (1969) 18 I.C.L.Q. 819; Foighel (1969) 39
Nordisk
Tid.Int.Ret. 109;
Friedmann (1970) 64 Am.J.1nt.L. 229; Grisel,
ibid.
562; Brown (1970) 23
Current
Legal
Problems
187; Rothpfeffer (1972) 42
Nordisk
Tid.Int.Ret. 81.
2
Schwamnberger (1966) 19
Current Legal Problems
192.
8
Ibid.
at p. 196.
4
Ibid.
at
p. 194.
638
Nov. 19781
IMAGES
AND
MODELS
IN
THE
WORLD
COURT
639
THE
NORTH
SEA CONTINENTAL SHELF CASES
The casm arose out of
a
dispute Ibetween Denmark and the Nether-
lands, on the one hand, and the Federal Republic of Germany on
the other, relating to the delimitation
of
their respective areas
of
North Sea Continental Shelf.
The
argument of the two Kingdoms
was that del’imitation should employ lines equidistant from the
coasts of the adjacent states. This, the
“
equidistance principle,”
was enshrined
in
Article
6
(2)
of
the 1958 Geneva Convention on
the Continental Shelf which provides that
:
“
Where the same continental shelf is adjacent to the terri-
tones of
bwo
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 deter-
mined Iby application
of
the principle of equidistance from the
nearest points
of
the baselines from which the breadlth of the
territorial
sea
of each State is measured.”
Denmark and the Netherlands were parties to the Convention
but
the
Federal Republic
was
not.
Consequently, the
case
for the
two Kingdoms rested
on
customary international law, which they
argued had now adopted the equidistance principle. Motivated by
the concave shape of her North
Sea
coast, which caused lines
drawn according to the principle
of
quidistance to
“
box
in
”
her
shelf, Germany
argued
that international law required a quite
different system, namely apportionment
of
the shelf in such a way
as to give each coastal State
a
“
just and equitable share
”
of
the
whole.
Short partial boundary lines were
agreed
in 1964 and 1965, but
in the absence
of
any further agreement the three States referred
the matter to the International Court
of
Justice, which was asked
in Article 1 of the two Special Agreements to decide: “What
principles and
des
of
international law are applicable to the
delimitation
as
between the Parties of the areas of the Continental
Shelf in the North
Sea
which appertain to each
of
them beyond the
partial
boundary
determined by [the agreements
of
1964
and
19651
?
”
By
11
votes to
six
the
Corurt
decided that the use of the equi-
distance principle was not obligatory as between the parties and
that there was no other single method of delimitation the use of
which was obligatory in all circumstances. Delimitation was there-
fore to
‘be
effected by agreement in awordance
wi&h
equitable prin-
ciples, ensuring that as far
as
possible each State’s shelf was a
natural prolongation of its land territory. In arriving at a delimita-
tion the parties were to take into account
inter
ulia
the general
5
U.K.
Treaty
Series
No.
39
(1964)
Cmnd.
2422.
For
commentary
see
Whiteman
6
[
19691
1.C.J.Rep.
6.
(1958)
52
Am.J.1nt.L.
629
and
Gutteridge
(1959)
35
Brit.
Year
Book
1nt.L.
102.
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