1.

) NORTH SEA CONTINENTAL SHELF CASES

Judgment of 20 February 1969 The Court decided the two cases in a single Judgment, which it adopted by eleven
votes to six. Amongst the Members of the Court concurring in the Judgment, Judge
The Court delivered judgment, by 11 votes to 6, in the North Sea Continental Shelf Sir Muhammad Zafrulla Khan appended a declaration; and President Bustamante y
cases. Rivero and Judges Jessup, Padilla Nervo and Ammoun appended separate opinions.
In the case of the non-concurring Judges, a declaration of his dissent was appended
The dispute, which was submitted to the Court on 20 February 1967, related to the by Judge Bengzon; and Vice-President Koretsky, together with Judges Tanaka,
delimitation of the continental shelf between the Federal Republic of Germany and Morelli and Lachs, and Judge ad hoc Sorensen, appended dissenting opinions.
Denmark on the one hand, and between the Federal Republic of Germany and the
Netherlands on the other. The Parties asked the Court to state the principles and In its Judgment, the Court examined in the context of the delimitations concerned
rules of international law applicable, and undertook thereafter to carry out the the problems relating to the legal regime of the continental shelf raised by the
delimitations on that basis. contentions of the Parties.

The Court rejected the contention of Denmark and the Netherlands to the effect The Facts and the Contentions of the Parties (paras. 1-17 of the Judgment)
that the delimitations in question had to be carried out in accordance with the
principle of equidistance as defined in Article 6 of the 1958 Geneva Convention on The two Special Agreements had asked the Court to declare the principles and rules
the Continental Shelf, holding: of international law applicable to the delimitation as between the Parties of the
areas of the North Sea continental shelf appertaining to each of them beyond the
- that the Federal Republic, which had not ratified the Convention, was not legally partial boundaries in the immediate vicinity of the coast already determined
bound by the provisions of Article 6; between the Federal Republic and the Netherlands by an agreement of 1 December
1964 and between the Federal Republic and Denmark by an agreement of 9 June
- that the equidistance principle was not a necessary consequence of the general 1965. The Court was not asked actually to delimit the further boundaries involved,
concept of continental shelf rights, and was not a rule of customary international the Parties undertaking in their respective Special Agreements to effect such
law. delimitation by agreement in pursuance of the Court's decision.

The Court also rejected the contentions of the Federal Republic in so far as these The waters of the North Sea were shallow, the whole seabed, except for the
sought acceptances of the principle of an apportionment of the continental shelf Norwegian Trough, consisting of continental shelf at a depth of less than 200
into just and equitable shares. It held that each Party had an original right to those metres. Most of it had already been delimited between the coastal States
areas of the continental shelf which constituted the natural prolongation of its land concerned. The Federal Republic and Denmark and the Netherlands, respectively,
territory into and under the sea. It was not a question of apportioning or sharing had, however, been unable to agree on the prolongation of the partial boundaries
out those areas, but of delimiting them. referred to above, mainly because Denmark and the Netherlands had wished this
prolongation to be effected on the basis of the equidistance principle, whereas the
The Court found that the boundary lines in question were to be drawn by Federal Republic had considered that it would unduly curtail what the Federal
agreement between the Parties and in accordance with equitable principles, and it Republic believed should be its proper share of continental shelf area, on the basis
indicated certain factors to be taken into consideration for that purpose. It was now of proportionality to the length of its North Sea coastline. Neither of the boundaries
for the Parties to negotiate on the basis of such principles, as they have agreed to in question would by itself produce this effect, but only both of them together - an
do. element regarded by Denmark and the Netherlands as irrelevant to what they
viewed as being two separate delimitations, to be carried out without reference to
The proceedings, relating to the delimitation as between the Parties of the areas of the other.
the North Sea continental shelf appertaining to each of them, were instituted on 20
February 1967 by the communication to the Registry of the Court of two Special A boundary based on the equidistance principle, i.e., an "equidistance line", left to
Agreements, between Denmark and the Federal Republic and the Federal Republic each of the Parties concerned all those portions of the continental shelf that were
and the Netherlands respectively. By an Order of 26 April 1968, the Court joined the nearer to a point on its own coast than they were to any point on the coast of the
proceedings in the two cases. other Party. In the case of a concave or recessing coast such as that of the Federal
Republic on the North Sea, the effect of the equidistance method was to pull the virtue of its sovereignty over the land. That right was inherent. In order to exercise
line of the boundary inwards, in the direction of the concavity. Consequently, where it, no special legal acts had to be performed. It followed that the notion of
two equidistance lines were drawn, they would, if the curvature were pronounced, apportioning an as yet undelimited area considered as a whole (which underlay the
inevitably meet at a relatively short distance from the coast, thus "cutting off" the doctrine of the just and equitable share) was inconsistent with the basic concept of
coastal State from the area of the continental shelf outside. In contrast, the effect continental shelf entitlement.
of convex or outwardly curving coasts, such as were, to a moderate extent, those of
Denmark and the Netherlands, was to cause the equidistance lines to leave the Non-Applicability of Article 6 of the 1958 Continental Shelf Convention (paras. 21-
coasts on divergent courses, thus having a widening tendency on the area of 36 of the Judgment)
continental shelf off that coast.
The Court then turned to the question whether in delimiting those areas the
It had been contended on behalf of Denmark and the Netherlands that the whole Federal Republic was under a legal obligation to accept the application of the
matter was governed by a mandatory rule of law which, reflecting the language of equidistance principle. While it was probably true that no other method of
Article 6 of the Geneva Convention on the Continental Shelf of 29 April 1958, was delimitation had the same combination of practical convenience and certainty of
designated by them as the "equidistance-special circumstances" rule. That rule was application, those factors did not suffice of themselves to convert what was a
to the effect that in the absence of agreement by the parties to employ another method into a rule of law. Such a method would have to draw its legal force from
method, all continental shelf boundaries had to be drawn by means of an other factors than the existence of those advantages.
equidistance line unless "special circumstances" were recognized to exist. According
to Denmark and the Netherlands, the configuration of the German North Sea coast The first question to be considered was whether the 1958 Geneva Convention on
did not of itself constitute, for either of the two boundary lines concerned, a special the Continental Shelf was binding for all the Parties in the case. Under the formal
circumstance. provisions of the Convention, it was in force for any individual State that had signed
it within the time-limit provided, only if that State had also subsequently ratified it.
The Federal Republic, for its part, had contended that the correct rule, at any rate in Denmark and the Netherlands had both signed and ratified the Convention and
such circumstances as those of the North Sea, was one according to which each of were parties to it, but the Federal Republic, although one of the signatories of the
the States concerned should have a "just and equitable share" of the available Convention, had never ratified it, and was consequently not a party. It was
continental shelf, in proportion to the length of its sea-frontage. It had also admitted on behalf of Denmark and the Netherlands that in the circumstances the
contended that in a sea shaped as is the North Sea, each of the States concerned Convention could not, as such, be binding on the Federal Republic. But it was
was entitled to a continental shelf area extending up to the central point of that contended that the regime of Article 6 of the Convention had become binding on
sea, or at least extending to its median line. Alternatively, the Federal Republic had the Federal Republic, because, by conduct, by public statements and proclamations,
claimed that if the equidistance method were held to bc applicable, the and in other ways, the Republic had assumed the obligations of the Convention.
configuration of the German North Sea coast constituted a special circumstance
such as to justify a departure from that method of delimitation in this particular It was clear that only a very definite, very consistent course of conduct on the part
case. of a State in the situation of the Federal Republic could justify upholding those
contentions. When a number of States drew up a convention specifically providing
The Apportionment Theory Rejected (paras. 18-20 of the Judgment) for a particular method by which the intention to become bound by the regime of
the convention was to be manifested, it was not lightly to be presumed that a State
The Court felt unable to accept, in the particular form it had taken, the first which had not carried out those formalities had nevertheless somehow become
contention put forward on behalf of the Federal Republic. Its task was to delimit, bound in another way. Furthermore, had the Federal Republic ratified the Geneva
not to apportion the areas concerned. The process of delimitation involved Convention, it could have entered a reservation to Article 6, by reason of the faculty
establishing the boundaries of an area already, in principle, appertaining to the to do so conferred by Article 12 of the Convention.
coastal State and not the determination de novo of such an area. The doctrine of
the just and equitable share was wholly at variance with the most fundamental of Only the existence of a situation of estoppel could lend substance to the contention
all the rules of law relating to the continental shelf, namely, that the rights of the of Denmark and the Netherlands - i.e., if the Federal Republic were now precluded
coastal State in respect of the area of continental shelf constituting a natural from denying the applicability of the conventional regime, by reason of past
prolongation of its land territory under the sea existed ipso facto and ab initio, by conduct, declarations, etc., which not only clearly and consistently evinced
acceptance of that regime, but also had caused Denmark or the Netherlands, in attributed to another. Hence, the notion of equidistance was not an inescapable a
reliance on such conduct, detrimentally to change position or suffer some priori accompaniment of basic continental shelf doctrine.
prejudice. Of this there was no evidence. Accordingly, Article 6 of the Geneva
Convention was not, as such, applicable to the delimitations involved in the present A review of the genesis of the equidistance method of delimitation confirmed the
proceedings. foregoing conclusion. The "Truman Proclamation" issued by the Government of the
United States on 28 September 1945 could be regarded as a starting point of the
The Equidistance Principle Not Inherent in the Basic Doctrine of the Continental positive law on the subject, and the chief doctrine it enunciated, that the coastal
Shelf (paras. 37-59 of the Judgment) State had an original, natural and exclusive right to the continental shelf off its
shores, had come to prevail over all others and was now reflected in the1958
It had been maintained by Denmark and the Netherlands that the Federal Republic Geneva Convention. With regard to the delimitation of boundaries between the
was in any event, and quite apart from the Geneva Convention, bound to accept continental shelves of adjacent States, the Truman Proclamation had stated that
delimitation on an equidistance basis, since the use of that method was a rule of such boundaries "shall be determined by the United States and the State concerned
general or customary international law, automatically binding on the Federal in accordance with equitable principles". These two concepts, of delimitation by
Republic. mutual agreement and delimitation in accordance with equitable principles, had
underlain all the subsequent history of the subject. It had been largely on the
One argument advanced by them in support of this contention, which might be recommendation of a committee of experts that the principle of equidistance for
termed the a priori argument, started from the position that the rights of the the delimitation of continental shelf boundaries had been accepted by the United
coastal State to its continental shelf areas were based on its sovereignty over the Nations International Law Commission in the text it had laid before the Geneva
land domain, of which the shelf area was the natural prolongation under the sea. Conference of 1958 on the Law of the Sea which had adopted the Continental Shelf
From this notion of appurtenance was derived the view, which the Court accepted, Convention. It could legitimately be assumed that the experts had been actuated by
that the coastal State's rights existed ipso facto and ab initio. Denmark and the considerations not of legal theory but of practical convenience and cartography.
Netherlands claimed that the test of appurtenance must be "proximity": all those Moreover, the article adopted by the Commission had given priority to delimitation
parts of the shelf being considered as appurtenant to a particular coastal State by agreement and had contained an exception in favour of "special circumstances".
which were closer to it than they were to any point on the coast of another State.
Hence, delimitation had to be effected by a method which would leave to each one The Court consequently considered that Denmark and the Netherlands inverted the
of the States concerned all those areas that were nearest to its own coast. As only true order of things and that, far from an equidistance rule having been generated
an equidistance line would do this, only such a line could be valid, it was contended. by an antecedent principle of proximity inherent in the whole concept of
continental shelf appurtenance, the latter was rather a rationalization of the former
This view had much force; the greater part of a State's continental shelf areas
would normally in fact be nearer to its coasts than to any other. But the real issue The Equidistance Principle Not a Rule of Customary International Law (paras. 60-82
was whether it followed that every part of the area concerned must be placed in of the Judgment)
that way. The Court did not consider this to follow from the notion of proximity,
which was a somewhat fluid one. More fundamental was the concept of the The question remained whether through positive law processes the equidistance
continental shelf as being the natural prolongation of the land domain. Even if principle must now be regarded as a rule of customary international law.
proximity might afford one of the tests to be applied, and an important one in the
right conditions, it might not necessarily be the only, nor in all circumstances the Rejecting the contentions of Denmark and the Netherlands, the Court considered
most appropriate, one. Submarine areas did not appertain to the coastal State that the principle of equidistance, as it figured in Article 6 of the Geneva
merely because they were near it, nor did their appurtenance depend on any Convention, had not been proposed by the International Law Commission as an
certainty of delimitation as to their boundaries. What conferred the ipso jure title emerging rule of customary international law. This Article could not be said to have
was the fact that the submarine areas concerned might be deemed to be actually reflected or crystallized such a rule. This was confirmed by the fact that any State
part of its territory in the sense that they were a prolongation of its land territory might make reservations in respect of Article 6, unlike Articles 1, 2 and 3, on signing,
under the sea. Equidistance clearly could not be identified with the notion of ratifying or acceding to the Convention. While certain other provisions of the
natural prolongation, since the use of the equidistance method would frequently Convention, although relating to matters that lay within the field of received
cause areas which were the natural prolongation of the territory of one State to be customary law, were also not excluded from the faculty of reservation, they all
related to rules of general maritime law very considerably antedating the The Principles and Rules of Law Applicable (paras. 83-101 of the Judgment)
Convention which were only incidental to continental shelf rights as such, and had
been mentioned in the Convention simply to ensure that they were not prejudiced The legal situation was that the Parties were under no obligation to apply the
by the exercise of continental shelf rights. Article 6, however, related directly to equidistance principle either under the 1958 Convention or as a rule of general or
continental shelf rights as such, and since it was not excluded from the faculty of customary international law. It consequently became unnecessary for the Court to
reservation, it was a legitimate inference that it was not considered to reflect consider whether or not the configuration of the German North Sea coast
emergent customary law. constituted a "special circumstance". It remained for the Court, however, to
indicate to the Parties the principles and rules of law in the light of which
It had been argued on behalf of Denmark and the Netherlands that even if at the delimitation was to be effected.
date of the Geneva Convention no rule of customary international law existed in
favour of the equidistance principle, such a rule had nevertheless come into being The basic principles in the matter of delimitation, deriving from the Truman
since the Convention, partly because of its own impact, and partly on the basis of Proclamation, were that it must be the object of agreement between the States
subsequent State practice. In order for this process to occur it was necessary that concerned and that such agreement must be arrived at in accordance with
Article 6 of the Convention should, at all events potentially, be of a norm-creating equitable principles. The Parties were under an obligation to enter into negotiations
character. Article 6 was so framed, however, as to put the obligation to make use of with a view to arriving at an agreement and not merely to go through a formal
the equidistance method after a primary obligation to effect delimitation by process of negotiation as a sort of prior condition for the automatic application of a
agreement. Furthermore, the part played by the notion of special circumstances in certain method of delimitation in the absence of agreement; they were so to
relation to the principle of equidistance, the controversies as to the exact meaning conduct themselves that the negotiations were meaningful, which would not be the
and scope of that notion, and the faculty of making reservations to Article 6 must all case when one of them insisted upon its own position without contemplating any
raise doubts as to the potentially norm-creating character of that Article. modification of it. This obligation was merely a special application of a principle
underlying all international relations, which was moreover recognized in Article 33
Furthermore, while a very widespread and representative participation in a of the Charter of the United Nations as one of the methods for the peaceful
convention might show that a conventional rule had become a general rule of settlement of international disputes.
international law, in the present case the number of ratifications and accessions so
far was hardly sufficient. As regards the time element, although the passage of only The Parties were under an obligation to act in such a way that in the particular case,
a short period of time was not necessarily a bar to the formation of a new rule of and taking all the circumstances into account, equitable principles were applied.
customary international law on the basis of what was originally a purely There was no question of the Court's decision being ex aequo et bono. It was
conventional rule, it was indispensable that State practice during that period, precisely a rule of law that called for the application of equitable principles, and in
including that of States whose interests were specially affected, should have been such cases as the present ones the equidistance method could unquestionably lead
both extensive and virtually uniform in the sense of the provision invoked and to inequity. Other methods existed and might be employed, alone or in
should have occurred in such a way as to show a general recognition that a rule of combination, according to the areas involved. Although the Parties intended
law was involved. Some 15 cases had been cited in which the States concerned had themselves to apply the principles and rules laid down by the Court some indication
agreed to draw or had drawn the boundaries concerned according to the principle was called for of the possible ways in which they might apply them.
of equidistance, but there was no evidence that they had so acted because they had
felt legally compelled to draw them in that way by reason of a rule of customary For all the foregoing reasons, the Court found in each case that the use of the
law. The cases cited were inconclusive and insufficient evidence of a settled equidistance method of delimitation was not obligatory as between the Parties;
practice. that no other single method of delimitation was in all circumstances obligatory; that
delimitation was to be effected by agreement in accordance with equitable
The Court consequently concluded that the Geneva Convention was not in its principles and taking account of all relevant circumstances, in such a way as to leave
origins or inception declaratory of a mandatory rule of customary international law as much as possible to each Party all those parts of the continental shelf that
enjoining the use of the equidistance principle, its subsequent effect had not been constituted a natural prolongation of its land territory, without encroachment on
constitutive of such a rule, and State practice up to date had equally been the natural prolongation of the land territory of the other; and that, if such
insufficient for the purpose. delimitation produced overlapping areas, they were to be divided between the

Parties in agreed proportions, or, failing agreement, equally, unless they decided on
a regime of joint jurisdiction, user, or exploitation.

In the course of negotiations, the factors to be taken into account were to include:
the general configuration of the coasts of the Parties, as well as the presence of any
special or unusual features; so far as known or readily ascertainable, the physical
and geological structure and natural resources of the continental shelf areas
involved, the element of a reasonable degree of proportionality between the extent
of the continental shelf areas appertaining to each State and the length of its coast
measured in the general direction of the coastline, taking into account the effects,
actual or prospective, of any other continental shelf delimitations in the same
region.



2.) North Sea Continental Shelf Cases (Summary) 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
Name of the Case: The North Sea Continental Shelf Cases (Germany/Denmark; a line would result in her loosing out on her share of the continental shelf based on
Germany/Netherlands); Year of Decision: 1969; and Court: ICJ. 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,
NB: This post discussed only aspects of the case related to treaty or customary the court had to decide if the principles espoused by the parties were binding on
international law. the parties either through treaty law or customary international law.

Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the Questions before the Court (as relevant to this post):
dual requirement for forming customary international law State practice
(objective element) and opinio juris (subjective element). It elaborated the criteria Is Germany under a legal obligation to accept the equidistance-special
necessary to establish State practice widespread and representative participation. circumstances principle, contained in Article 6 of the Geneva Convention, either as
The case highlighted that the State practice of importance were of those States a customary international law rule or on the basis of the Geneva Convention?
whose interests were affected by the custom. It also identified the fact that uniform
and consistent practice was necessary to show opinio juris a belief that the The Courts Decision:
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 The use of the equidistance method had not crystallised into customary law and
essential factor in forming customary international law. was is not obligatory for the delimitation of the areas in the North Sea related to
the present proceedings.
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 Relevant Findings of the Court:
boundaries previously agreed upon by these States. The parties requested the ICJ to
decide the principles and rules of international law that are applicable to the above Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular
delimitation. The parties disagreed on the applicable principles or rules of Article 6, binding on Germany?
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 1. Article 6 of the Geneva Convention on the Continental Shelf states that unless
boundary is equidistant from the nearest points of the baselines from which the the parties have agreed on a method for delimitation or unless special
breath of the territorial sea of each State is measured). Germany sought to get a circumstances exist, the equidistance method would apply (see Article 6). Germany
decision in favour of the notion that the delimitation of the relevant continental has signed but not ratified the Geneva Convention, while Netherlands and Denmark
shelf is governed by the principle that each coastal state is entitled to a just and are parties to the Convention. The latter two States argue that while Germany is not
equitable share (hereinafter called just and equitable principle/method). Contrary a party to the Convention (not having ratified it), she is still bound by Article 6 of the
to Denmark and Netherlands, Germany argued that the principle of equidistance Convention because:
was neither a mandatory rule in delimitation of the continental shelf nor a rule of
customary international law that was not binding on Germany. The court was not (1) by conduct, by public statements and proclamations, and in other ways,
asked to delimit the parties agreed to delimit the continental shelf as between the Republic has unilaterally assumed the obligations of the Convention; or has
their countries, by agreement, after the determination of the ICJ on the applicable manifested its acceptance of the conventional regime; or has recognized it as being
principles. generally applicable to the delimitation of continental shelf areas

Facts of the Case: (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
Netherlands and Denmark had drawn partial boundary lines based on the and the Netherlands, to rely on the attitude thus taken up (the latter is called the
equidistance principle (A-B and C-D). An agreement on further prolongation of the principle of estoppel).
boundary proved difficult because Denmark and Netherlands wished this
prolongation to take place based on the equidistance principle (B-E and D-E) where
2. The Court rejected the first argument. It stated that only a very definite very 7. To decide if the equidistance principle bound Germany by way of customary
consistent course of conduct on the part of a State would allow the court to international law, the court examined (1) the status of the principle contained in
presume that a State had somehow become bound by a treaty (by a means other Article 6 as it stood when the Convention was being drawn up (2) and after the
than in a formal manner: i.e. ratification) when the State was at all times fully able latter came into force.
and entitled to accept the treaty commitments in a formal manner. The Court
held that Germany had not unilaterally assumed obligations under the Convention. What was the customary law status of Article 6 at the time of drafting the
The court also took notice of the fact that even if Germany ratified the treaty, she Convention?
had the option of entering into a reservation on Article 6 following which that
particular article would no longer be applicable to Germany (i.e. even if one were to 8. The court held the principle of equidistance, as contained in Article 6, did not
assume that Germany had intended to become a party to the Convention, it does form a part of existing or emerging customary international law at the time of
not presuppose that it would have also undertaken those obligations contained in drafting the Convention. The Court supported this finding based on (1) the
Article 6). hesitation expressed by the drafters of the Convention International Law
Commission on the inclusion of Article 6 (para. 62) and (2) the fact reservations to
3. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came Article 6 was permissible under the Convention (Article 12). The court held:
into force in 1980, discusses more fully the obligations of third States to treaties. It
clearly stipulates that an obligation arises for a third State from a provision of a Article 6 is one of those in respect of which, under the reservations article of the
treaty only if (1) the parties to the treaty intend the provision to create this Convention (Article 12) reservations may be made by any State on signing, ratifying
obligation for the third States; and (2) the third State expressly accepts that or acceding for, speaking generally, it is a characteristic of purely conventional rules
obligation in writing (A. 35 of the VCLT). The VCLT was not in force when the ICJ and obligations that, in regard to them, some faculty of making unilateral
deliberated on this case. However, as seen above, the ICJs position was consistent reservations may, within certain limits, be admitted; whereas this cannot be so in
the VCLT. (See the relevant provisions of the Vienna Convention on the Law of the case of general or customary law rules and obligations which, by their very
Treaties). 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
4. The court held that the existence of a situation of estoppel would have allowed will by any one of them in its own favor. The normal inference would therefore be
Article 6 to become binding on Germany but held that Germanys action did not that any articles that do not figure among those excluded from the faculty of
support an argument for estoppel. The court also held that the mere fact that reservation under Article 12, were not regarded as declaratory of previously
Germany may not have specifically objected to the equidistance principle as existing or emergent rules of law (see para 65 for a counter argument and the
contained in Article 6 is not sufficient to state that the principle is now binding upon courts careful differentiation)
it.
Did the provisions in Article 6 on the equidistance principle attain the customary
5. In conclusion, the court held that Germany had not acted in any way to incur law status after the Convention came into force?
obligations contained in Article 6 of the Geneva Convention. The equidistance
special circumstances rule was not binding on Germany by way of treaty. 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
Nature of the customary international law obligation: Is Germany bound by the the convention itself (i.e., if enough States had ratified the Convention in a manner
provisions of Article 6 of the Geneva Convention by way of customary international to fulfil the criteria specified below), or because of subsequent State practice (i.e.
law? even if 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
6. Netherlands and Denmark argued that Article 6 also reflected the accepted rule the Convention had not attained a customary law status (compare the 1958 Geneva
of general international law on the subject of continental shelf delimitation and Convention with the four Geneva Conventions on 1949 in the field of international
existed independently of the Convention. Therefore, they argued, Germany is humanitarian law in terms of its authority as a pronouncement of customary
bound by it by way of customary international law. international law).

10. For a customary rule to emerge the court held that it needed: (1) very practice (the objective element) and opinio juris (the subjective element) are
widespread and representative participation in the convention, including States essential pre-requisites for the formation of a customary law rule. This is consistent
whose interests were specially affected (i.e. generality); and (2) virtually uniform with Article 38 (1) (b) of the Statute of the ICJ. The following explains the concept of
practice (i.e. consistent and uniform usage) undertaken in a manner that opinio juris and the difference between customs (i.e. habits) and customary law:
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 Not only must the acts concerned amount to a settled practice, but they must
passage of a considerable period of time was unnecessary (i.e. duration) for the also be such, or be carried out in such a way, as to be evidence of a belief that this
formation of a customary law. 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
Widespread and representative participation 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
11. The court held that the first criteria was not met. The number of ratifications frequency, or even habitual character of the acts is not in itself enough. There are
and accessions to the convention (39 States) were not adequately representative many international acts, e.g., in the field of ceremonial and protocol, which are
(including of coastal States i.e. those States whose rights are affected) or performed almost invariably, but which are motivated only by considerations of
widespread. courtesy, convenience or tradition, and not by any sense of legal duty.

Duration 15. The court concluded that the equidistance principle was not binding on
Germany by way of treaty or customary international law because, in the case of
12. The court held that duration taken for the customary law rule to emerge is not the latter, the principle had not attained a customary international law status at the
as important as widespread and representative participation, uniform usage and time of the entry into force of the Geneva Convention or thereafter. As such, the
the existence of an opinio juris. court held that the use of the equidistance method is not obligatory for the
delimitation of the areas concerned in the present proceedings.
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 (text
in brackets added).

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 are 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, 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
3.) Brief Fact Summary. The view that customary rules of international law Discussion. The concept of opinion juris analyzed by the dissent is in consonance
determined the boundaries of areas located on the continental shelf between their with the position taken by some legal scholars who maintain that opinio juris may
countries and the Federal Republic of Germany (D) was contended by Denmark (P) be presumed from uniformities of practice regarding matters viewed normally as
and the Netherlands (P). involving legal rights and obligations. A contrary position maintains that the practice
of states must be accompanied by or consist of statements that something is law
Synopsis of Rule of Law. For a custom to become binding as international law, it before it can become law
must amount to a settled practice and must be rendered obligatory by a rule
requiring it.

Facts. That the boundaries between their respective areas of the continental shelf
in the North Sea and the area claimed by the Federal Republic of Germany (D),
should be determined by the application of the principle of equidistance as set forth
in Article 6 of the Geneva Convention of 1958 on the Continental Shelf, which by
January 1, 1969 had been ratified or acceded to by 39 states but to which Germany
was not a party, was the basis of Denmarks (D) and the Netherlands (P)
contention.
Because the use of the delimitation method was not merely a conventional
obligation, but a rule that was part of the corpus of general international law and
like other rules of general or customary international law, which was binding
automatically on Germany (D), independent of any specific assent, direct or
indirect, given by Germany (D), Denmark (P) and the Netherlands (P) contended
that Germany (D) was bound to accept the delimitation on an equidistance basis.

Issue. Must delimitation be the object of an equitable agreement between the
states involved?
Held. Yes. Delimitation must be the object of an equitable agreement between the
states involved. As stipulated in Article 6 of the Geneva Convention, equidistance
principle is not part of customary international law. Article 6 makes the obligation
to use the equidistance method a secondary one which comes into play only when
agreements between the parties are absent. Although the principle of equidistance
is not given a fundamental norm-creating character by Article 6, which is necessary
to the formation of a general rule of law.
In this case, after taking into consideration all relevant circumstances, the
delimitation here is to be excused by equitable agreement.

Dissent. (Lachs, J.) not only the states who are parties to the Convention on the
Continental Shelf have accepted the principles and rules enshrined in the
Convention including the equidistance rule, but by other states who that have
subsequently followed it in agreements, or in their legislation, or have acquiesced in
it when faced with legislative acts of other affecting them. This can be seen as
evidence of a practice widespread enough to satisfy the criteria for a general rule of
law.