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 losing 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.
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 Court’s 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 Court’s 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 Germany’s 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 equidistance–special
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 Court’s
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 latter’s 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.
The Apportionment Theory Rejected .The Court felt unable to accept, in the particular form it had
taken, the first contention put forward on behalf of the Federal Republic. Its task was to delimit, not
to apportion the areas concerned. The process of delimitation involved establishing the boundaries
of an area already, in principle, appertaining to the 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 all the rules of law relating to the continental shelf, namely, that the rights of the
coastal State in respect of the area of continental shelf constituting a natural prolongation of its land
territory under the sea existed ipso facto and ab initio, by virtue of sovereignty over the land. That
right was inherent. In order to exercise it, no special legal acts had to be performed. It followed that
the notion of apportioning an as yet undelimited area as a whole (which underlay the doctrine of the
just and equitable share) was inconsistent with the basic concept of continental shelf entitlement.

Non-Applicability of Article 6 of the I958 Continental Shelf Convention (p,s. 21-36 of the judgment)
The Court then turned to the question whether in delimiting those areas the Federal Republic was
under a legal obligation to accept the application of the equidistance principle.While it was probably
me that no other method of delimitation had the same combination of practical convenience and
certainty of application, those factors did not suffice of themselves to convert what was a method
into a rule of law. Such a method would have to draw its legal force from other factors than the
existence of those advantages. The first question to be considered was whether the 1958 Geneva
Convention on the Continental Shelf was binding for all the Parties in the case. Under the formal
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. Denmark and, the
Netherlands had both signed and ratified the Convention and were parties to it, but the Federal
Republic, although one of the signatories of the Convention, had never ratified il:, and was
consequently not a party. It was admitted on behalf of Denmark and the Netherlands that in the
circumstancethe Convention absence of agreement by the parties to emplloy another could not, as
such, be binding on the Federal Republic. But it method, all continental shelf boundaries had to tx
drawn by was contended that the r6gime of Article 6 of the Convention means of an equidistance
line, unless '"special circum- had become binding on the Federal Republic, because, by stances" were
recognized to exist. Accordling 1:o Denmark conduct, by public statements and proclzunations, and
in and the Netherlands, the co~nfiguration of the German North other ways, the Republic had
assumed the obligations of the Sea coast did not of itself constitute, for either of the two
Convention. boundary lines concerned, a. special circum!rtance. It was clear that only a very
definite, very consistent The Federal Republic, for its part, had contended that the course of conduct
on the part of a State in the situation of the correct rule, at any rate in such circumstanc~:~ as those
of the Federal Republic could justify upholding those contentions. North Sea, was one according to
which each of the States When a number of States drew up a convention specifically concerned
should have a "just and equitatlle share" of the providing for a particular method by which the
intention to available continental shelf, in proportion to the 1.ength of its become bound by the
r6gime of the convention was to be sea-frontage. It had also corrtended that in a, sea shaped as is
manifested, it was not lightly to be presumed that a State the North Sea, each of the States
concerned was entitled to a which had not carried out those formalities had nevertheless
continental shelf area extendling up to the cei~tral point of that somehow become bound in another
way. Furthermore, had sea, or at least extending to its median line. IUtenlatively, the the Ferderal
Republic ratified the Geneva Convention, it Federal Republic had claimed that if the equidistance
method could have entered a reservation to Article 6, by reason of the were held to be applicable,
.the configuration of the German faculty to do so conferred by Article 12 of the Convention
The Court was faced with two ‘fundamentally different’ positions:31 Denmark
and the Netherlands argued that the delimitation method provided for in article 6 of the
1958 Convention expressed a legal rule that was binding on Germany, either by virtue
of the Convention itself, or by virtue of general (i.e. customary) international law. The
rule would thus require adopting equidistance lines for the continental shelf boundaries
of Germany with both states, because the configuration of the German coast did not
constitute ‘special circumstances’ allowing deviation from the principle of
equidistance. Similarly, the continental shelf boundaries drawn between Denmark and
the Netherlands were opposable to Germany, precisely because they were drawn
pursuant to a rule (the rule in article 6) binding on that state too.32
Germany, for its part, did not consider itself bound by the rule contained in
article 6 of the 1958 Convention, whether as a matter of treaty or as a matter of
customary international law. While recognising the utility of equidistance as a method
of delimitation, Germany argued that this method should be used only if it would
achieve a just and equitable apportionment of the continental shelf among the states
concerned. According to Germany, the principle that each state be accorded a ‘just and