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.

Brief Fact Summary. The view that customary rules of international law determined the
boundaries of areas located on the continental shelf between their countries and the
Federal Republic of Germany (D) was contended by Denmark (P) and the Netherlands
(P).

Synopsis of Rule of Law. For a custom to become binding as international law, it 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 Denmark’s (D) and the Netherland’s (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 Netherland’s (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.

Discussion. The concept of opinion juris analyzed by the dissent is in consonance with
the position taken by some legal scholars who maintain that opinio juris may be presumed
from uniformities of practice regarding matters viewed normally as 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 before it can become law