COUNTER-MEMORlAL SUBMITTED BY TH.E GOVERNmNT OF THE KINGDOM OF DENMARK Vederal Republic of Germany/Denmark) INTRODUCTION 1. This Counter-Mernorial is subrnitted to the International Court of Justice by the Govemment of the Kingdom of Denmark in pursuance of an Order made on E biarch 1967 by the Judge discharging the duties of President of the International Court of Justice under Article 12 of the RuIes of Court. For further particulan regarding the submission of the present dispute to the Court derence is made to paragraphs 1-5 of the Memorial filed on 21 August 1967 by the Govemment of the Federal Republic of Germany. 2. The dispute has arisen because the Federal Republic has thought fit to lay clairn to areas of the continental sheif beneath the North Sea which lie rimrer to the coast of Denmark than they do to that of the Federal Republic and whjch, naturally, are considered by Denmark to form part of her con- tinental shelf. The dispute has come to the Court because the Federal Republic, ivhile inwking the recognition by the Geneva Conference in the Continental Shelf Convention of the rights of a coastal State over the subrnarine areas adjacent to its Coast, has declined to acknowledge the right of Denmark to delimit her continental shelf in accordance with the principles recognized as appLicable by that same Conference in that same Convention. And now the cru% of ~liedispute Liefore the Court is that the Federnl Republic denlands an appurtimnt of the continental shelf beneath the Nurth San according to the Federal Gowrnnient's own notion uf whnt is due to the Federal Rcpub- lic ex neqztu el LWIII),whereas Deiimark asks for th^ dcIimitalion of lier con- ti~ientolshcll in aucurdanco with llie generally recognized principlev and rules of ioteriiatinnal Iaiv. 5. The Meninrial contains nurncrous r~i~rcacesto writers. which rcfcrcnccs have oniy ken spaiwly cominented upon in this Culinter-Menlorial. Several quataticm. hmwr, appea.r oirt of context. Anncx 15 ill~istrnlesa nuinber of instanms whcrc quotritions seÿm to be incoinplete. 4. For the canvmicnct: 01 th(: Court, a.nd having regard to Article 42 of the Rdes of Court, tlis present Counter-Mcmorial is divided into thc samt: main parts as the Memorial subrnitted on 21 August 1967 by the Agent for the Governent of the Federal Republic of Gerrnany. In framing the individual Chapters of these main parts, two principles have kenfollowed. On the one hand the present Pleading, being a Counter-Memo- rial, wks to cornpb with the sccond paragraph of Article 42 of the Rules of Court, whicb prwribes that a Counter-Mernorial shall contain, among other thin& an admiuion or denial of the facts stated in the Memorial, and obwwations mncerning the statement of law in the said Mernorial. On the other hand the preseat Pleading takes account of the fact that it affords the ktopprtunity to place before the Court the views of the Kingdom of Dmkcm the matter in dispute. This results from Article 2 of the Special 158 NORTH SEA CONTINENTALSHELF Agreement of 2 February 1967 between the Kingdorn of Denmark and the Federal Republic of Gerrnany, wherein, pursuant to the provisions of Article 37 of the Rules of Court, the Parties have agreed that, without prejudice to any question of burden of proof, a Memorial shaii first be submitted to the Court by the Federal Republic of Germany, and then a Counter-Memorial by the Kingdom of Denmark. 5. Consequently, the present Counter-Memorial contains: in Part 1 an exposition of the relevant facts and of the history of the dispute, supplementing and correcting the exposition given in the Memorial of the German Federal Government ; in Part II the legal considerations which the Government of the Kingdom of Denmark considers to be of importance to the present case, together with its observations on the legal position taken by the Gemn Federal Govern- ment in Part II of the Memorial; in Part III the submissions to the Court regarding the principles and rules of international law applicable to the deIimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them; in Part IV the annexes, with English translations where the text is neither in English nor in French. PART 1. FACTS AND HISTORY OF THE DISPUTE CHAPTER I GEOLOGY AND GEOGRAPHY 6. The description given of the North Sea in paragraphs 7-8 of the Memorial is, from a strictly geographical point of view, no doubt correct. The legal con- clusions drawn from it aiready at this stage are, however, unjustified. 7. The Court will find as Annex 7 to this Counter-Mernorial a Memorandum giving a summary of exploration activities as weil as certain additional geolo- gical facts concerning the area under dispute, including such generally admitted conclusions as may be drawn from scientific knowledge and practical expe- rience as to the probability of the existence of mineral oil or natural gas in different parts of the area. As appears from this Memorandum, the most promising area is situated just to the north of the shelf boundary established according to the principle of equidistance. The Danish concessionaire has acted upon the knowledge acquired by scientific and practical experience and confirmed by geophysical surveys which started in 1963. The first drillings undertaken in the Danish continental shelf area started in August 1966 and were resumed in August 1967. They were carried out in exactly that part of the shelf area which presented the most promising pros- pects at locations specified on the chart shown in Annex 7. The Danish con- essionaire was the first to undertake drilling in the area, and the preliminary results of the drillings indicate the existence of natural resources which may be commercially exploitable. It will be seen from the chart that the positions where drillings have been undertaken and where the presence of oil- and gas-bearing layers has been ascertained are within the area which the Federal Republic of Germany now suggests is to be allotted to her (Memorial, fig. 21, p. 85, supra). Under the terms of the concession it expires in 1972 unless the concessionaire has found naturaI resources and started production prior thereto. Therefore the concessionaire-immediately after the concession in 1963 was extended to comprise the Danish continental shelf-sbrted the necessary surveys of the Danish North Sea continental shelf. These surveys were extended and inten- sified during the following years. The Danish Government-which has based the delimitation of Danish shelf boundaries on the principle of equidistance as laid down in Article 6 of the Geneva Convention-has not felt bound to put any restraint on the development of natural resources of the greatest importance to the economy of a small country. 8. Furthermore, it 'should be noted that aIthough Danish geological re- search in the North Sea was not started until 1963, as early as 1952 Denmark clearly and on an international plane expressed views identical to those on which her attitude in the present dispute is based. Denmark has subsequently consistently claimed and administered her continental shelf in accordance with those views. 9. In order to provide the Court with a convenient geographical view of the 160 NORTH SEA CONTINENTAL SHELF North Sea the map enclosed on the inside back cover of this Counter-Memo- rial, among other things, shows those continentai shelf boundaries on which agreement has aiready been achieved-in dl cases on the basis of equidistance- as weii as the boundaries of the North Sea under the North Sea Fisheries Convention of 1882. 10. With regard to paragraph 9 of the Mernorial the folIowing facts are submitted : The angle of the German North Sea coast is approximately 100'. The Federal Republic of Germany has not, so far, established straight baselines along her coast. The boundary on the basis of equidistance suggested on charts annexed to the present Counter-Mernorial takes into account the relevant base-points along the German shore and coastal islands. There is no dispute between the Parties on this aspect of the delimitation. The Island of Heligoland is of no significance to the present dispute, since it exercises no material-if any-influence on the equidistance line. COUNTER-MEMORIAL OF DENMARK CHAPTER II DANISH ATTlTUDE TO THE CONTINENTAL SHELF QUESTION 11. Denmark took an initiative jn continental shelf matters at an early stage. In 1948 a committee was set up by the Ministry of Foreign Affairs with the object of exarnining the legal, political, economic and scientific pprblems relating to the continental shelf. 12. As a result of its work, the commitfee made a recommendation in early 1952 with an attached sketch of the delimitation of the Danish continental shelf in the North Sea and the Baltic. The recommendation forrned the basis of the commrnts of the Danish Government on the International Law Com- mission's draft of the Continental Shelf Convention. A memorandum, with the sketch attached was sent to the United Nations in May 1952. It was re- printed without the sketch in the International Law Corn~nissionYearbook of 1953, Volume II, pages 245-247, and is submitted as Annex 8. In the memo- randum the Danish Government said, among other things: "The Danish authorities have prepared the enclosed sketch of a division of the shelf contiguous to the Danish coasts facing the North Sea and the Baltic and the waters between them. This sketch is primarily based on the boundaries fixed on 3 September 1921 between Danish and German territorial waters east and west of Jutland, and the boundary fixed by agreement of 30 January 1932 between Danish and Swedish waters in the Sound and the prolongation of these lines cornbined with the median line, where the latter is applicable, and otherwise based on planes forming the locus of points closer to Denmark than to any other country involved.