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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.
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.

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