NORTH SEA CONTINENTAL SHELF CASES (SUMMARY)

International Court of Justice Contentious Case: The North Sea Continental Shelf Cases
(Germany/Denmark; Germany/Netherlands).

Year of Decision: 1969.

Note: This post discusses only aspects of the case related to treaty and customary international law.

Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the dual requirement for
the formation of customary international law: (1) State practice (the objective element) and (2) opinio
juris (the subjective element). In these cases, the Court explained the criteria necessary to establish
State practice widespread and representative participation. It highlighted that the practices of those
States whose interests were specially affected by the custom were especially relevant in the formation
of customary law. It also held that uniform and consistent practice was necessary to demonstrate opinio
juris opinio juris is the belief that State practice amounts to a legal obligation. The North Sea
Continental Self Cases also dispelled the myth that duration of the practice (i.e. the number of years)
was an essential factor in forming customary international law.

The case involved the delimitation of the continental shelf areas in the North Sea between Germany and
Denmark and Germany and Netherlands beyond the partial boundaries previously agreed upon by these
States. The parties requested the Court to decide the principles and rules of international law that are
applicable to the above delimitation because the parties disagreed on the applicable principles or rules
of delimitation. Netherlands and Denmark relied on the principle of equidistance (the method of
determining the boundaries in such a way that every point in the boundary is equidistant from the
nearest points of the baselines from which the breath of the territorial sea of each State is measured).
Germany sought to get a decision in favour of the notion that the delimitation of the relevant
continental shelf was governed by the principle that each coastal state is entitled to a just and equitable
share (hereinafter called just and equitable principle/method). Contrary to Denmark and Netherlands,
Germany argued that the principle of equidistance was neither a mandatory rule in delimitation of the
continental shelf nor a rule of customary international law that was binding on Germany. The Court was
not asked to delimit because the parties had already agreed to delimit the continental shelf as between
their countries, by agreement, after the determination of the Court on the applicable principles.

Facts of the Case:

Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle (A-B
and C-D). An agreement on further prolongation of the boundary proved difficult because Denmark and
Netherlands wanted this prolongation to take place based on the equidistance principle (B-E and D-E)
where as Germany was of the view that, together, these two boundaries would produce an inequitable
result for her. Germany stated that due to its concave coastline, such a line would result in her loosing
out on her share of the continental shelf based on proportionality to the length of its North Sea
coastline. The Court had to decide the principles and rules of international law applicable to this
delimitation. In doing so, the Court had to decide if the principles espoused by the parties were binding
on the parties either through treaty law or customary international law.

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North Sea Continental Shelf Cases (commons.wikimedia.org)

Questions before the Court (as relevant to this post):

Is Germany under a legal obligation to accept the equidistance-special circumstances principle,

contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958, either as a customary
international law rule or on the basis of the Geneva Convention?

The Courts Decision:

The use of the equidistance method had not crystallised into customary law and the method was not
obligatory for the delimitation of the areas in the North Sea related to the present proceedings.

Relevant Findings of the Court:

1. Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article 6, binding on
Germany?

1. Article 6 of the Geneva Convention stated that unless the parties had already agreed on a method for
delimitation or unless special circumstances exist, the equidistance method would apply. Germany had
signed, but not ratified, the Geneva Convention, while Netherlands and Denmark were parties to the
Convention. The latter two States argued that while Germany is not a party to the Convention (not
having ratified it), she was still bound by Article 6 of the Convention because:

(1) by conduct, by public statements and proclamations, and in other ways, the Republic has
unilaterally assumed the obligations of the Convention; or has manifested its acceptance of the
conventional regime; or has recognized it as being generally applicable to the delimitation of continental
shelf areas

(2) the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a manner as
to cause other States, and in particular Denmark and the Netherlands, to rely on the attitude thus taken
up (the latter is called the principle of estoppel).

2. The Court rejected the first argument. It said that only a very definite very consistent course of
conduct on the part of a State would allow the Court to presume that the State had somehow become
bound by a treaty (by a means other than in the formal manner: i.e. ratification) when the State was at
all times fully able and entitled to accept the treaty commitments in a formal manner. The Court held
that Germany had not unilaterally assumed obligations under the Convention. The court also took notice
of the fact that even if Germany ratified the treaty, she had the option of entering into a reservation on
Article 6, following which that particular article would no longer be applicable to Germany (in other
words, even if one were to assume that Germany had intended to become a party to the Convention, it
does not presuppose that it would have also undertaken those obligations contained in Article 6).

3. Note: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force in 1980,
discusses in more detail treaty obligations of third States (those States who are not parties to the
treaty). It clearly stipulates that obligations arise for third States from a provision of a treaty only if (1)
the actual parties to the treaty intended the provision to create obligations for third States; and (2) third
State expressly accept those obligations in writing (Article 35 of the VCLT). The VCLT was not in force
when the Court deliberated on this case. However, as seen above, the Courts position is consistent the
VCLT. (See the relevant provisions of the Vienna Convention on the Law of Treaties).

4. The Court held that the existence of a situation of estoppel would have allowed Article 6 to become
binding on Germany but held that Germanys action did not support an argument for estoppel. The
Court also held that the mere fact that Germany may not have specifically objected to the equidistance
principle as contained in Article 6, is not sufficient to state that the principle is now binding upon it.

5. In conclusion, the Court held that Germany had not acted in any manner so as to incur obligations
contained in Article 6 of the Geneva Convention. The equidistancespecial circumstances rule was not
binding on Germany by way of treaty law.

2. Nature of the customary international law obligation: Is Germany bound by the provisions of Article 6
of the Geneva Convention in so far as they reflect customary international law?

6. Netherlands and Denmark argued that Article 6 also reflected the accepted rule of general
international law on the subject of continental shelf delimitation and that it existed independently of
the Convention. Therefore, they argued, Germany is bound by the subject matter of Article 6 by way of
customary international law.

7. To decide if the equidistance principle bound Germany by way of customary international law, the
Court examined (1) the status of the principle contained in Article 6 as it stood when the Convention
was being drawn up; and (2) its status after the Convention came into force.

(a) What was the customary law status of Article 6 at the time of drafting the Convention?

8. The Court held that the principle of equidistance, as contained in Article 6 did not form a part of
existing or emerging customary international law at the time of drafting the Convention. The Court
supported this finding based on (1) the hesitation expressed by the drafters of the Convention, the
International Law Commission, on the inclusion of Article 6 into the Convention and (2) the fact that
reservations to Article 6 was permissible under the Convention. The Court held:

Article 6 is one of those in respect of which, under the reservations article of the Convention (Article
12) reservations may be made by any State on signing, ratifying or acceding, for speaking generally, it
is a characteristic of purely conventional rules and obligations that, in regard to them, some faculty of
making unilateral reservations may, within certain limits, be admitted; whereas this cannot be so in the
case of general or customary law rules and obligations which, by their very nature, must have equal
force for all members of the international community, and cannot therefore be the subject of any right
of unilateral exclusion exercisable at will by any one of them in its own favor. The normal inference
would therefore be that any articles that do not figure among those excluded from the faculty of
reservation under Article 12, were not regarded as declaratory of previously existing or emergent rules
of law (see para 65 for a counter argument and the Courts careful differentiation)

(b) Did the provisions in Article 6 on the equidistance principle attain the customary law status after the
Convention came into force?

9. The Court then examined whether the rule contained in Article 6 had become customary international
law after the Convention entered into force either due the Convention itself (i.e., if enough States had
ratified the Convention in a manner so as to fulfil the criteria specified below), or because of subsequent
State practice (i.e. even if an adequate number of States had not ratified the Convention, one could find
sufficient State practice to meet the criteria below). The Court held that Article 6 of the Convention had
not attained a customary law status. (Compare the 1958 Geneva Convention with the four Geneva
Conventions on 1949 relating to international humanitarian law in terms of the latters authority as a
pronouncement of customary international law).

10. For a customary rule to emerge the Court held that it needed: (1) very widespread and
representative participation in the Convention, including States whose interests were specially affected
(in this case, they were coastal States) (i.e. generality); and (2) virtually uniform practice (i.e. consistent
and uniform usage) undertaken in a manner that demonstrates (3) a general recognition of the rule of
law or legal obligation (i.e. opinio juries). In the North Sea Continental Shelf cases the court held that the
passage of a considerable period of time was unnecessary (i.e. duration) for the formation of a
customary law.

Widespread and representative participation

11. The Court held that the first criteria was not met. The number of ratifications and accessions to the
Convention (39 States) were not adequately representative or widespread.

Duration

12. The Court held that the duration taken for a customary law rule to emerge is not as important as
widespread and representative participation, uniform usage, and the existence of an opinio juris. It held
that:

Although the passage of only a short period of time (in this case, 3 5 years) is not necessarily, or of
itself, a bar to the formation of a new rule of customary international law on the basis of what was
originally a purely conventional rule, an indispensable requirement would be that within the period in
question, short though it might be, State practice, including that of States whose interests are specially
affected, should have been both extensive and virtually uniform in the sense of the provision invoked
and should moreover have occurred in such a way as to show a general recognition that a rule of law or
legal obligation is involved.

Opinio juris

13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case), in so far as
those acts or omissions were done following a belief that the said State is obligated by law to act or
refrain from acting in a particular way. (For more on opinio juris click here).

14. The Court examined 15 cases where States had delimited their boundaries using the equidistance
method, after the Convention came into force (paras. 75 -77). The Court concluded that even if there
were some State practice in favour of the equidistance principle, the Court could not deduct the
necessary opinio juris from this State practice. The North Sea Continental Shelf Cases confirmed that
both State practice (the objective element) and opinio juris (the subjective element) are essential pre-
requisites for the formation of a customary law rule. This is consistent with Article 38 (1) (b) of the
Statute of the ICJ. The Court explained the concept of opinio juris and the difference between customs
(i.e. habits) and customary law:
Not only must the acts concerned amount to a settled practice, but they must also be such, or be
carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it. The need for such a belief, i.e, the existence of a subjective
element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must
therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even
habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field
of ceremonial and protocol, which are performed almost invariably, but which are motivated only by
considerations of courtesy, convenience or tradition, and not by any sense of legal duty. (Para 77).

15. The Court concluded that the equidistance principle was not binding on Germany by way of treaty
or customary international law. In the case of the latter, the principle had not attained a customary
international law status at the time of the entry into force of the Geneva Convention or thereafter. As
such, the Court held that the use of the equidistance method is not obligatory for the delimitation of the
areas concerned in the present proceedings.

Ruwanthika Gunaratne at https://ruwanthikagunaratne.wordpress.com, 2008 2017. Unauthorized

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