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NORTH SEA CONTINENTAL SHELF CASES (SUMMARY)

Name of the Case: The North Sea Continental Shelf Cases (Germany/Denmark;
Germany/Netherlands); Year of Decision: 1969; and Court: ICJ.
NB: This post discussed only aspects of the case related to treaty or customary international law.
Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the dual requirement
for forming customary international law State practice (objective element) and opinio juris (subjective
element). It elaborated the criteria necessary to establish State practice widespread and representative
participation. The case highlighted that the State practice of importance were of those States 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 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 ICJ to decide the principles and rules of international law that are
applicable to the above delimitation. 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 is 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 not binding on Germany. The court was not asked to delimit the parties agreed
to delimit the continental shelf as between their countries, by agreement, after the determination of the
ICJ on the applicable principles.
Facts of the Case:
Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle (A-B and CD). An agreement on further prolongation of the boundary proved difficult because Denmark and
Netherlands wished this prolongation to take place based on the equidistance principle (B-E and DE) 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, 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 was is not obligatory for
the delimitation of the areas in the North Sea related to the present proceedings.
Relevant Findings of the Court:

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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 on the Continental Shelf states that unless the parties have agreed
on a method for delimitation or unless special circumstances exist, the equidistance method would apply
(see Article 6). Germany has signed but not ratified the Geneva Convention, while Netherlands and
Denmark are parties to the Convention. The latter two States argue that while Germany is not a party to
the Convention (not having ratified it), she is 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 stated that only a very definite very consistent course of
conduct on the part of a State would allow the court to presume that a State had somehow become bound
by a treaty (by a means other than in a 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 (i.e. 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. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came 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 treaty only if (1) the parties to the treaty intend the provision to
create this obligation for the third States; and (2) the third State expressly accepts that obligation in
writing (A. 35 of the VCLT). The VCLT was not in force when the ICJ deliberated on this case. However, as
seen above, the ICJs position was 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 way 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.
Nature of the customary international law obligation: Is Germany bound by the provisions of Article 6 of the
Geneva Convention by way of 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 existed independently of the Convention.
Therefore, they argued, Germany is bound by it 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 (2) and after the latter came into force.
What was the customary law status of Article 6 at the time of drafting the Convention?

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8. The court held 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 International Law
Commission on the inclusion of Article 6 (para. 62) and (2) the fact reservations to Article 6 was
permissible under the Convention (Article 12). 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)
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 to fulfil the criteria specified below), or because of subsequent State
practice (i.e. 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 the Convention had not attained
a customary law status (compare the 1958 Geneva Convention with the four Geneva Conventions on 1949
in the field of international humanitarian law in terms of its 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 (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 (including of coastal States i.e. those States
whose rights are affected) or widespread.
Duration
12. The court held that duration taken for the customary law rule to emerge is not as important as
widespread and representative participation, uniform usage and the existence of an opinio juris.
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

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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
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
following explains the concept of opinio jurisand 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.
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 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.
_________________________
States become parties to a treaty through consent. That is to say, States agree to be bound by treaty
provisions when they ratify these treaties. States, sometimes, enter into reservations on certain provisions
of the treaty with the result that they are no longer bound by those provisions or are bound to the extent
accepted by the reservation.
The question whether customary international law binds states through consent is subject to academic
debate. We know that the basic rule of general customary international law (as opposed to a local custom)
is that it binds all States. New states are bound by old customary law, in spite of the fact that they did not
consent to the custom at the time of its formation or there after. States that are silent during the formation
of customary law are bound by their silence we call this tacit acceptance or acquiescence.
States can express its intention to be bound by customary law through public declarations, much like the
signature appended to treaties. They can also oppose, in a public manner, acts of another state that is
contrary to an established or establishing customary law this opposition would give justifiable reasons for
other states to assume that the first state opposes the breach because it recognizes the customary law
nature of the rule. Thereby, consenting to the application of the customary rule to itself.
If we work on the premise that states can consent to be bound by customary law, either in expressed or
tacit manner, then we should also discuss the possibility of a state withholding consent. This is quite
normal in treaty relations a state that does not wish to be bound by the treaty (1) may refuse to ratify or
accept the treaty; or (2) in the event that it is already a treaty party, it may withdraw from the treaty
following the procedures established by the treaty or in international law.
In customary international law, we call a state attempts to undertake (1) above i.e. refuse to be bound by
the customary international law at its inception a persistent objector and (2) above i.e. refuse to be
bound by customary international law after it comes into force a subsequent objector. The difference
between treaty and customary international law in this respect is that in case of (1) theoretically at least

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both states are said to be exempt from their respective treaty and customary international law obligations
and in case** of (2) for the treaty ceased to have an effect on the party that withdraws (with the exception
of continuing obligations), but, subsequent objector remains bound by the customary law principle that it
seeks to reject. (**there are some doubts as to the theoretical assumption presented in point (1) as will be
seen below). We will first discuss legal issues surrounding the persistent objector and then the subsequent
objector.

Persistent objector
The court in the Anglo Norwegian Fisheries case held that even if a customary law rule existed (on a tenmile rule relating to straight base-lines),
the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has always
opposed any attempt to apply it to the Norwegian coast.
On the other hand, in the Asylum case the court found that a state is not bound by a customary law rule
when the state refrained from becoming a party to a convention that was the first to introduce the rule
that had crystallized into custom.
But even if it could be supposed that such a custom existed between certain Latin-American States only,
it could not be invoked against Peru which, far from having by its attitude adhered to it, has, on the
contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939, which
were the first to include a rule concerning the qualification of the offence in matters of diplomatic asylum.
NB: It is arguable whether this can apply as a general rule because there are many reasons that a state
may refuse to sign a convention for example, political, moral or economic reasons. We also know that the
state has the option to enter into a treaty and reserve out of the objectionable treaty provision. One cannot
always assume, unless the state has expressed itself on the matter, that a state refuses to sign a particular
treaty because it refutes the legality of a particular provision within the treaty.
In both these cases, the court did not set out the criteria to determine if a state is a persistent objector. It
did, however, allude to certain criteria in the Anglo-Norwegian fisheries case jurisprudence. The
jurisprudence of the case appears to support the idea that an existing customary law rule would not apply
to a state if
(1) it objected to any outside attempts to apply the rule to itself (a) at the initial stages and (b) in a
consistent manner, and
(2) if other states did not object to her resistance (read more in the case summary available here).
Commentators have stated, on the other hand, that for a state to become a persistent objector, the state
must
(1) object to the practice at the initial stages of the formation of customary law and continue to object in a
sustained manner; or
(2) adopt a contrary practice at the initial stages of the formation of customary law and continue to do so a
sustained manner.
The objection must be expressed either verbally or as contrary practice. There is no rule that States have
to take physical action to preserve their rights (see the commentary (15) to the ILA customary law study).
Some argue that the notion of a persistent objector is a figment of the imagination of international
lawyers. Curtis quotes Stein in stating that the latters research failed to turn up any case where an
author provided even one instance of a state claiming or granting an exemption from a rule on the basis of
the persistent objector principle excepting of course the Asylum and Fisheries cases themselves.

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The basis of a persistent objector, in academic literature, appears to be that the objecting state claims an
exemption from a potential and actual rule. In the Fisheries case Norway did not claim such an exemption.
Norway was clear that it was not claiming an exception to the rule (i.e. that its practice was not contrary to
international law) but rather it claimed that its practice was in conformity with international law (see page
21).
The Norwegian Government does not rely upon history to justify exceptional rights, to claim areas of
sea which the general law would deny; it invokes history, together with other factors, to justify the way in
which it applies the general law. In its (Norways) view, these rules of international law take into account
the diversity of facts and, therefore, concede that the drawing of baselines must be adapted to the special
conditions obtaining in different regions. In its view, the system of delimitation applied in 1935, a system
characterized by the use of straight lines, does not therefore infringe the general law; it is an adaptation
rendered necessary by local conditions.
In other words, Norway did not plead an exemption to the general rule and the courts finding to support
this position. It is possible that Norway did not plead this exemption because it did not believe the rule to
exist. For example, the Norwegian Minister of Foreign Affairs, in 1870, stated that,
in spite of the adoption in some treaties of the quite arbitrary distance of 10 sea miles, this distance
would not appear to me to have acquired the force of international law. Still less would it appear to have
any foundation in reality
A state cannot plead for an exemption of a rule that it does not recognize to exist. Therefore, as Norway
did, it would instead plead that its action is in conformity with international law.
But what if the rule had crystallized into a general customary international law rule? In this case,
irrespective of the recognition of an individual state the rule would exist and the state wishing to benefit,
as a persistent objector, would undoubtedly claim an exemption to the rule. In reality, there have not been
cases before the international court of justice of this nature where a state claims that it is exempted from
customary international law after the rule had formed.
Is it then possible to argue that the court envisaged a so-called persistent objector rule is possible only at
the time of the formation of customary international law? As Charney points out, in both the Asylum and
Fisheries cases, the court was dealing with a customary law whose existence was uncertain. In other
words, the rule was at its initial stages where it could have or could not have evolved into a customary law.
In fact, the two international court of justice cases which appear to support the persistent objector rule
both arose in circumstances where the new rule itself was in substantial doubt. Thus, it was significantly
easier for the objector to maintain its status. No case is cited for a circumstance in which the objector
effectively maintained its status after the rule became well accepted in international law. In fact, it is
unlikely that such a status can be maintained in light of the realities of the international legal system. This
is certainly the plight that befell the US, The UK and Japan in the law of the sea. Their objections to
expanded coastal state jurisdiction were ultimately to no avail, and they have been forced to accede to 12mile territorial seas and the 200-mile exclusive economic zone.
The absurdity of a persistent objector continuing to benefit from its objector status is demonstrated in the
following examples:
(1) Consider also this possibility. A customary law rule is formed with regard to the 12-mile territorial limit
within which the states citizens have the exclusive right to engage in fishing. If country B considers
themselves as persistent objectors to this rule then it is not bound by this rule. Country Bs citizens, then in
pursuance of the non-binding nature of the customary law rule on its country, ventures into country Cs
territorial waters to fish. Country C can arrest these fishermen and prosecute them in accordance with its
domestic laws. Country B does not have an actionable cause before an international court because country
Cs action was to enforce a customary law right.

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(2) The other argument is that persistent objection cannot affect or look to absolve the states obligations
of jus cogens norms. For example, a state cannot said to have a right or escape from the prohibition of
torture simply because it had been a persistent objector. This would be consistent with the position in
treaty law states cannot make treaties or treaty reservations that conflict with jus cogens norms.
But what about other fundamental norms that fall short of the jus cogens status consider for example
human rights obligations that do not form jus cogens norms. For example, in the hypothetical scenario that
a state objected initially and persistently to the freedom of expression or religion, would the state, then, be
excused if it violated peoples rights to freedom and religion? Or would we say that these people did not
have the rights because the state chose the path of a persistent objector?
(3) What if the rule that the persistent objector objected to was an obligation? Assume for example, the
hunting of a certain endangered animal is prohibited under treaty and customary law. Assume that state B
had consistently objected to this prohibition and continues to hunt that animal even after the prohibition
becomes a customary law right. Does this mean that state B is now absolved from the prohibition and can
continue to hunt regardless of the customary law ban?
In view of the above, it maybe more prudent and practical to argue that a state can only be a persistent
objector and have the benefits of being a persistent objector at the time of the formation of the
customary law. This is also consistent with the fact that existing customary law binds new states and that
they cannot withdraw from customary law after they attain statehood. The two decisions of the
International Court of Justice support this view (see Charneys views on how a persistent objector can use
its status to influence the development of the law).
It goes without saying that if a number of states affected by a particular custom objects to the newly
emerging customary rule this would prevent its formation or assist in the formation of a different
customary law rule. The ILA customary law study states:
As a matter of policy, the persistent objector rule could be regarded as a useful compromise. It respects
States sovereignty and protects them from having new law imposed on them against their will by a
majority; but at the same time, if the support for the new rule is sufficiently widespread, the convoy of the
laws progressive development can move forward without having to wait for the slowest vessel.

Subsequent objector
Suffice to say, the consequences of a subsequent objector one who objects after the formation of the
customary law rule is clear. The state that objects continues to be bound by the customary law. If it acts
in contrary to the law, it violates the law. The state can be held responsible for the violation under
international law.
If a number of states agree to the deviation then these states could create another customary law rule,
either as a local custom or, if a sufficient number of affected states participate, a general custom.
For a subsequent objector to develop a new customary law rule an existing norm must be broken. A state
wishing to change customary law must either (1) violate the law and hope other states would acquiesce to
it (and if, and until such time the state would be in breach of a customary international law); or (2) without
violating the existing law the state must (a) get a sufficient number of states to accept that a new
customary law had developed before choosing to adopt its state practice accordingly or (2) use the
existing framework and creative interpretations to bring the violation within the existing law. In time, this
creative interpretation would allow for the formation of new law or it would be rejected by states
preventing such formation. In this manner, at least, as Rasheed argues, the state would not have to
repudiate the customary law before adopting a contrary practice.

Recommended Reading
Case law

Anglo Norwegian Fisheries Case, ICJ, 1951 pp. 131 held that the 10 mile rule will not apply to
Norway because [] she has always opposed any attempt to apply it to the Norwegian coast.
(Click here for the summary of the case)

North Sea Continental Shelf Cases, ICJ (Click here for the summary of the case)

customary law rules . . . 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 favour.

Asylum Case, ICJ (click here for the summary of the case).

The Scotia (1871)

Undoubtedly, no single nation can change the law of the sea. That law is of universal obligation, and no
statute of one or two nations can create obligations for the world. Like all the laws of nations, it rests upon
the common consent of civilized communities. It is of force, not because it was prescribed by any superior
power, but because it has been generally accepted as a rule of conduct. Whatever may have been its
origin, whether in the usages of navigation or in the ordinances of maritime states, or in both, it has
become the law of the sea only by the concurrent sanction of those nations who may be said to constitute
the commercial world. Many of the usages which prevail, and which have the force of law, doubtless
originated in the positive prescriptions of some single state, which were at first of limited effect, but which
when generally accepted became of universal obligation. The Rhodian law is supposed to have been the
earliest system of marine rules. It was a code for Rhodians only, but it soon became of general authority
because accepted and assented to as a wise and desirable system by other maritime nations.

The persistent objector rule and development of customary international law, Charney (1986)

Bradley et al.,Withdrawing from International Custom, Yale Law Journal (2010). This article
provoked a series of replies that can be found here.

The authors argue that in the past a State could unilaterally withdraw from a customary law, if the State
gave adequate notice about its intent. They call this the Default View of CIL. Today, unless it is a
persistent objection, a State cannot unilaterally withdraw from an existing custom. This is called the
Mandatory View. This rule apples to new States, who never even had the chance of objecting as a
persistent objector. The shift from default view to mandatory view
[] appears to have occurred in the late nineteenth and early twentieth centuries, at a time when
imperialism was at its height and most of Asia and Africa were under the control of the European powers.
The family of nations was being expanded, but control over law creation was still largely in the hands of
the so-called civilized nations, which meant primarily nations in Western Europe. Viewed in this context,
the Mandatory View likely evolved as part of an effort to bind new nations and former colonies to
international law rules that had already been worked out by a handful of powerful states. Later, when the
new entrants into the system gained strength in numbers and the former powers became concerned that
they might lose control of the process of law creation in the international arena, the Mandatory View was
modified to allow for opting out of a CIL rule prior to the time that it became established. This right of opt
out, however, was crafted in such a way as to disallow new nations from opting out of any of the CIL rules
that had developed before they came into the system.

Bradley et al., Customary International Law and Withdrawal Rights in the Age of Treaties,Duke
Journal of Comparative and International Law (2011).

ILA customary law study: Comment 15

There is fairly widespread agreement that, even if there is a persistent objector rule in international law, it
applies only when the customary rule is in the process of emerging. It does not, therefore, benefit States
which came into existence only after the rule matured, or which became involved in the activity in
question only at a later stage. Still less can it be invoked by those who existed at the time and were
already engaged in the activity which is the subject of the rule, but failed to object at that stage. In other
words, there is no subsequent objector rule.

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NORTH SEA CONTINENTAL SHELF CASES

Judgment of 20 February 1969
The Court delivered judgment, by 11 votes to 6, in the North Sea Continental Shelf cases.
The dispute, which was submitted to the Court on 20 February 1967, related to the
delimitation of the continental shelf between the Federal Republic of Germany and 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 rules of international law
applicable, and undertook thereafter to carry out the delimitations on that basis.
The Court rejected the contention of Denmark and the Netherlands to the effect 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 Continental Shelf,
holding:
- that the Federal Republic, which had not ratified the Convention, was not legally bound by
the provisions of Article 6;
- that the equidistance principle was not a necessary consequence of the general concept of
continental shelf rights, and was not a rule of customary international law.
The Court also rejected the contentions of the Federal Republic in so far as these sought
acceptance of the principle of an apportionment of the continental shelf into just and
equitable shares. It held that each Party had an original right to those areas of the
continental shelf which constituted the natural prolongation of its land territory into and
under the sea. It was not a question of apportioning or sharing out those areas, but of
delimiting them.
The Court found that the boundary lines in question were to be drawn by agreement
between the Parties and in accordance with equitable principles, and it indicated certain
factors to be taken into consideration for that purpose. It was now for the Parties to negotiate
on the basis of such principles, as they have agreed to do.
The proceedings, relating to the delimitation as between the Parties of the areas of 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 Agreements, between
Denmark and the Federal Republic and the Federal Republic and the Netherlands
respectively. By an Order of 26 April 1968, the Court joined the proceedings in the two cases.
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 Sir Muhammad
Zafrulla Khan appended a declaration; and President Bustamante y 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 by Judge Bengzon; and Vice-President
Koretsky, together with Judges Tanaka, Morelli and Lachs, and Judge ad hoc Sorensen,
appended dissenting opinions.
In its Judgment, the Court examined in the context of the delimitations concerned the
problems relating to the legal rgime of the continental shelf raised by the contentions of

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the Parties.
The Facts and the Contentions of the Parties (paras. 1-17 of the Judgment)
The two Special Agreements had asked the Court to declare the principles and rules 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 partial boundaries in
the immediate vicinity of the coast already determined 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 1965.The Court was not asked actually to delimit the
further boundaries involved, the Parties undertaking in their respective Special Agreements
to effect such delimitation by agreement in pursuance of the Court's decision.
The waters of the North Sea were shallow, the whole seabed, except for the Norwegian
Trough, consisting of continental shelf at a depth of less than 200 metres. Most of it had
already been delimited between the coastal States concerned. The Federal Republic and
Denmark and the Netherlands, respectively, had, however, been unable to agree on the
prolongation of the partial boundaries 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 Federal Republic had considered that it would unduly curtail what the
Federal Republic believed should be its proper share of continental shelf area, on the basis of
proportionality to the length of its North Sea coastline. Neither of the boundaries in question
would by itself produce this effect, but only both of them together - an 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 other.
A boundary based on the equidistance principle, i.e., an "equidistance line", left to each of
the Parties concerned all those portions of the continental shelf that were nearer to a point
on its own coast than they were to any point on the coast of the 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 line of the boundary inwards, in the direction of
the concavity. Consequently, where two equidistance lines were drawn, they would, if the
curvature were pronounced, inevitably meet at a relatively short distance from the coast,
thus "cutting off" the coastal State from the area of the continental shelf outside. In contrast,
the effect 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 coasts on
divergent courses, thus having a widening tendency on the area of continental shelf off that
coast.
It had been contended on behalf of Denmark and the Netherlands that the whole matter was
governed by a mandatory rule of law which, reflecting the language of Article 6 of the
Geneva Convention on the Continental Shelf of 29 April 1958, was designated by them as the
"equidistance-special circumstances" rule. That rule was to the effect that in the absence of
agreement by the parties to employ another method, all continental shelf boundaries had to
be drawn by means of an equidistance line unless "special circumstances" were recognized
to exist. According to Denmark and the Netherlands, the configuration of the German North
Sea coast did not of itself constitute, for either of the two boundary lines concerned, a special
circumstance.
The Federal Republic, for its part, had contended that the correct rule, at any rate in such

12
circumstances as those of the North Sea, was one according to which each of the States
concerned should have a "just and equitable share" of the available continental shelf, in
proportion to the length of its sea-frontage. It had also contended that in a sea shaped as is
the North Sea, each of the States concerned was entitled to a continental shelf area
extending up to the central point of that sea, or at least extending to its median line.
Alternatively, the Federal Republic had claimed that if the equidistance method were held to
bc applicable, the 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
case.
The Apportionment Theory Rejected (paras. 18-20 of the Judgment)
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 its
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 considered 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 1958 Continental Shelf Convention (paras. 2136 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 true 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 it, and was
consequently not a party. It was admitted on behalf of Denmark and the Netherlands that in
the circumstances the Convention could not, as such, be binding on the Federal Republic. But
it was contended that the rgime of Article 6 of the Convention had become binding on the
Federal Republic, because, by conduct, by public statements and proclamations, and in other
ways, the Republic had assumed the obligations of the Convention.
It was clear that only a very definite, very consistent course of conduct on the part 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 for a particular method by

13
which the intention to become bound by the rgime of the convention was to be manifested,
it was not lightly to be presumed that a State which had not carried out those formalities had
nevertheless somehow become bound in another way. Furthermore, had the Federal Republic
ratified the Geneva Convention, it could have entered a reservation to Article 6, by reason of
the faculty to do so conferred by Article 12 of the Convention.
Only the existence of a situation of estoppel could lend substance to the contention of
Denmark and the Netherlands - i.e., if the Federal Republic were now precluded from denying
the applicability of the conventional rgime, by reason of past conduct, declarations, etc.,
which not only clearly and consistently evinced acceptance of that rgime, but also had
caused Denmark or the Netherlands, in reliance on such conduct, detrimentally to change
position or suffer some 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
proceedings.
The Equidistance Principle Not Inherent in the Basic Doctrine of the Continental
Shelf (paras. 37-59 of the Judgment)
It had been maintained by Denmark and the Netherlands that the Federal Republic was in
any event, and quite apart from the Geneva Convention, bound to accept delimitation on an
equidistance basis, since the use of that method was a rule of general or customary
international law, automatically binding on the Federal Republic.
One argument advanced by them in support of this contention, which might be termed the a
priori argument, started from the position that the rights of the coastal State to its
continental shelf areas were based on its sovereignty over the land domain, of which the
shelf area was the natural prolongation under the sea. From this notion of appurtenance was
derived the view, which the Court accepted, that the coastal State's rights existedipso
facto and ab initio. Denmark and the Netherlands claimed that the test of appurtenance
must be "proximity": all those parts of the shelf being considered as appurtenant to a
particular coastal State 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 of the States concerned all those areas that were nearest to its own coast. As only
an equidistance line would do this, only such a line could be valid, it was contended.
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 was whether it
followed that every part of the area concerned must be placed in 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 continental shelf as being the natural prolongation of
the land domain. Even if 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 most appropriate, one. Submarine areas did not appertain to the coastal
State merely because they were near it, nor did their appurtenance depend on any certainty
of delimitation as to their boundaries. What conferred the ipso jure title was the fact that the
submarine areas concerned might be deemed to be actually part of its territory in the sense
that they were a prolongation of its land territory under the sea. Equidistance clearly could
not be identified with the notion of natural prolongation, since the use of the equidistance
method would frequently cause areas which were the natural prolongation of the territory of
one State to be attributed to another. Hence, the notion of equidistance was not an

14
inescapable a priori accompaniment of basic continental shelf doctrine.
A review of the genesis of the equidistance method of delimitation confirmed the 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 positive law on the subject,
and the chief doctrine it enunciated, that the coastal 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 Geneva Convention. With regard to the delimitation of
boundaries between the continental shelves of adjacent States, the Truman Proclamation had
stated that such boundaries "shall be determined by the United States and the State
concerned in accordance with equitable principles". These two concepts, of delimitation by
mutual agreement and delimitation in accordance with equitable principles, had underlain all
the subsequent history of the subject. It had been largely on the recommendation of a
committee of experts that the principle of equidistance for the delimitation of continental
shelf boundaries had been accepted by the United Nations International Law Commission in
the text it had laid before the Geneva Conference of 1958 on the Law of the Sea which had
adopted the Continental Shelf Convention. It could legitimately be assumed that the experts
had been actuated by considerations not of legal theory but of practical convenience and
cartography. Moreover, the article adopted by the Commission had given priority to
delimitation by agreement and had contained an exception in favour of "special
circumstances".
The Court consequently considered that Denmark and the Netherlands inverted the true
order of things and that, far from an equidistance rule having been generated by an
antecedent principle of proximity inherent in the whole concept of continental shelf
appurtenance, the latter was rather a rationalization of the former
The Equidistance Principle Not a Rule of Customary International Law (paras. 6082 of the Judgment)
The question remained whether through positive law processes the equidistance principle
must now be regarded as a rule of customary international law.
Rejecting the contentions of Denmark and the Netherlands, the Court considered that the
principle of equidistance, as it figured in Article 6 of the Geneva Convention, had not been
proposed by the International Law Commission as an emerging rule of customary
international law. This Article could not be said to have reflected or crystallized such a rule.
This was confirmed by the fact that any State might make reservations in respect of Article 6,
unlike Articles 1, 2 and 3, on signing, ratifying or acceding to the Convention. While certain
other provisions of the Convention, although relating to matters that lay within the field of
received customary law, were also not excluded from the faculty of reservation, they all
related to rules of general maritime law very considerably antedating the 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 by the exercise of continental
shelf rights. Article 6, however, related directly to continental shelf rights as such, and since
it was not excluded from the faculty of reservation, it was a legitimate inference that it was
not considered to reflect emergent customary law.
It had been argued on behalf of Denmark and the Netherlands that even if at the date of the
Geneva Convention no rule of customary international law existed in favour of the

15
equidistance principle, such a rule had nevertheless come into being since the Convention,
partly because of its own impact, and partly on the basis of subsequent State practice. In
order for this process to occur it was necessary that Article 6 of the Convention should, at all
events potentially, be of a norm-creating character. Article 6 was so framed, however, as to
put the obligation to make use of the equidistance method after a primary obligation to
effect delimitation by agreement. Furthermore, the part played by the notion of special
circumstances in relation to the principle of equidistance, the controversies as to the exact
meaning and scope of that notion, and the faculty of making reservations to Article 6 must
all raise doubts as to the potentially norm-creating character of that Article.
Furthermore, while a very widespread and representative participation in a convention might
show that a conventional rule had become a general rule of 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 a short period of time was not necessarily a bar
to the formation of a new rule of customary international law on the basis of what was
originally a purely conventional rule, it was indispensable that State practice during that
period, including that of States whose interests were specially affected, should have been
both extensive and virtually uniform in the sense of the provision invoked and should have
occurred in such a way as to show a general recognition that a rule of law was involved.
Some 15 cases had been cited in which the States concerned had agreed to draw or had
drawn the boundaries concerned according to the principle 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 law. The cases cited were inconclusive and
insufficient evidence of a settled practice.
The Court consequently concluded that the Geneva Convention was not in its origins or
inception declaratory of a mandatory rule of customary international law enjoining the use of
the equidistance principle, its subsequent effect had not been constitutive of such a rule, and
State practice up to date had equally been insufficient for the purpose.
The Principles and Rules of Law Applicable (paras. 83-101 of the Judgment)
The legal situation was that the Parties were under no obligation to apply the equidistance
principle either under the 1958 Convention or as a rule of general or customary international
law. It consequently became unnecessary for the Court to consider whether or not the
configuration of the German North Sea coast 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 delimitation was to be effected.
The basic principles in the matter of delimitation, deriving from the Truman Proclamation,
were that it must be the object of agreement between the States concerned and that such
agreement must be arrived at in accordance with equitable principles. The Parties were
under an obligation to enter into negotiations with a view to arriving at an agreement and
not merely to go through a formal process of negotiation as a sort of prior condition for the
automatic application of a certain method of delimitation in the absence of agreement; they
were so to conduct themselves that the negotiations were meaningful, which would not be
the case when one of them insisted upon its own position without contemplating any
modification of it. This obligation was merely a special application of a principle underlying all
international relations, which was moreover recognized in Article 33 of the Charter of the

16
United Nations as one of the methods for the peaceful settlement of international disputes.
The Parties were under an obligation to act in such a way that in the particular case, and
taking all the circumstances into account, equitable principles were applied. There was no
question of the Court's decision being ex aequo et bono. It was precisely a rule of law that
called for the application of equitable principles, and in such cases as the present ones the
equidistance method could unquestionably lead to inequity. Other methods existed and
might be employed, alone or in combination, according to the areas involved. Although the
Parties intended themselves to apply the principles and rules laid down by the Court some
indication was called for of the possible ways in which they might apply them.
For all the foregoing reasons, the Court found in each case that the use of the equidistance
method of delimitation was not obligatory as between the Parties; that no other single
method of delimitation was in all circumstances obligatory; that delimitation was to be
effected by agreement in accordance with equitable principles and taking account of all
relevant circumstances, in such a way as to leave as much as possible to each Party all those
parts of the continental shelf that constituted a natural prolongation of its land territory,
without encroachment on the natural prolongation of the land territory of the other; and that,
if such delimitation produced overlapping areas, they were to be divided between the Parties
in agreed proportions, or, failing agreement, equally, unless they decided on a rgime 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.

Gulf of maine
59. In its judgment in Continental Shelf (Tunisia/Libyan Arab Jamahiriya) the Court referred to the actual
practice of States as expressive, or creative, of customary rules. In the Gulf of Maine case, a Chamber
of the Court observed that customary international law comprises a limited set of norms for ensuring the
co-existence and vital co-operation of the members of the international community, together with a set of
customary rules whose presence in the opinio juris of States can be tested by induction based on the
analysis of a sufficiently extensive and convincing practice, and not by deduction from preconceived
ideas.

------------------------

17

NICARAGUA VS UNITED STATES (SUMMARY) ON SELF DEFENCE AND USE

OF FORCE
Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com,
2008 present. Unauthorized use and/or duplication of this material without express and written
permission from this blogs author and/or owner is strictly prohibited. Excerpts and links may be used,
provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with
appropriate and specific direction to the original content.
Case: Case Concerning the Military and Paramilitary Activities In and Against Nicaragua
(Nicaragua vs United States) (Merits: focusing on matters relating to the use of force and self-defence)
Year of Decision: 1986
Court: ICJ

NB: This blog post will discuss matters on the use of force and self-defence. If you would like to read
about the impact of the Nicaragua judgement on customary international law and the US
multilateral reservation please click here.
Overview: The case involved military and paramilitary activities conducted by the United States against
Nicaragua from 1981 to 1984. Nicaragua asked the Court to find that these activities violated
international law.
Facts of the Case:
In July 1979 the Government of President Somoza collapsed following an armed opposition led by
the Frente Sandinista de Liberacibn Nacional (FSLN) . The new government installed by FSLN began to
meet armed opposition from supporters of the former Somoza Government and ex-members of the
National Guard. The US initially supportive of the new government changed its attitude when, according
to the United States, it found that Nicaragua was providing logistical support and weapons to guerrillas in
El Salvador. In April 1981 it terminated United States aid to Nicaragua and in September 1981, according
to Nicaragua, the United States decided to plan and undertake activities directed against Nicaragua.
The

armed

opposition

to

the

new

Government

was

conducted

mainly

by

(1) Fuerza Democratica Nicaragense (FDN), which operated along the border with Honduras, and
(2)Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa Rica, (see map
of the region). Initial US support to these groups fighting against the Nicaraguan Government (called
contras) was covert. Later, the United States officially acknowledged its support (for example: In 1983
budgetary legislation enacted by the United States Congress made specific provision for funds to be used
by United States intelligence agencies for supporting directly or indirectly military or paramilitary
operations in Nicaragua).
Nicaragua also alleged that the United States is effectively in control of the contras, the United
States devised their strategy and directed their tactics and that they were paid for and directly controlled
by United States personal. Nicaragua also alleged that some attacks were carried out by United

18
States military with the aim to overthrow the Government of Nicaragua. Attacks against Nicaragua
included the mining of Nicaraguan ports and attacks on ports, oil installations and a naval base. Nicaragua
alleged that aircrafts belonging to the United States flew over Nicaraguan territory to gather intelligence,
supply to the contras in the field and to intimidate the population.
The United States did not appear before the ICJ at the merit stages, after refusing to accept the ICJs
jurisdiction to decide the case. The United States at the jurisdictional phase of the hearing, however,
stated that it relied on an inherent right of collective self-defence guaranteed in A. 51 of the UN Charter by
providing, upon request, proportionate and appropriate assistance to Costa Rica, Honduras and El
Salvador in response to Nicaraguas alleged acts aggression against those countries (paras. 126, 128).

Questions before the Court:

Did the United States breach its customary international law obligation not to intervene in the
affairs of another State when it trained, armed, equipped and financed the contra forces or
encouraged, supported and aided the military and paramilitary activities against Nicaragua?

Did the United States breach its customary international law obligation not to use force against
another State when it directly attacked Nicaragua in 1983 1984 and when its activities in bullet
point 1 above resulted in the use of force?

If so, can the military and paramilitary activities that the United States undertook in and against
Nicaragua be justified as collective self-defence?

Did the United States breach its customary international law obligation not to violate the
sovereignty of another State when it directed or authorized its aircrafts to fly over Nicaraguan
territory and by acts referred to in bullet point 2 above?

Did the United States breach its customary international law obligations not to violate the
sovereignty of another State, not to intervene in its affairs, not to use force against another State
and not to interrupt peaceful maritime commerce when it laid mines in the internal waters and
the territorial sea of Nicaragua?

ICJ decision: The United States violated customary international law in relation to bullet points 1, 2, 4 and
5 above. On bullet point 3, the Court found that the United States could not rely on collective selfdefence to justify its use of force against Nicaragua.

Relevant Findings of the Court:

1. The court held that the United States breached its customary international law obligation
not to use force against another State: (1) when it directly attacked Nicaragua in 1983 1984;
and (2) when its activities with the contra forces resulted in the threat or use of force (see
paras 187 -201).
The Court held that:

19

The prohibition on the use of force is found in Article 2(4) of the UN Charter and in customary
international law.

In a controversial finding the court sub-classified the use of force as: (1) the most grave forms of
the use of force (i.e. those that constitute an armed attack) and (2) the less grave form (i.e.
organizing, instigating, assisting or participating in acts of civil strife and terrorist acts in another
State when the acts referred to involve a threat or use of force not amounting to an armed
attack).

The United States violated the customary international law prohibition on the use of force when it
laid mines in Nicaraguan ports. It violated this prohibition when it attacked Nicaraguan ports, oil
installations and a naval base (see below). The United States could justify its action on collective
self-defence, if certain criteria were met this aspect is discussed below.

The United States violated the customary international law prohibition on the use of force when it
assisted the contras by organizing or encouraging the organization of irregular forces and armed
bands for incursion into the territory of another state and participated in acts of civil strifein
another State when these acts involved the threat or use of force.

The supply of funds to the contras did not violate the prohibition on the use of force. Nicaragua
argued that the timing of the offensives against it was determined by the United States: i.e. an
offensive could not be launched until the requisite funds were available. The Court held that it
does not follow that each provision of funds by the United States was made to set in motion a
particular offensive, and that that offensive was planned by the United States. The Court held
further that while the arming and training of the contras involved the threat or use of force against
Nicaragua, the supply of funds, in it self, only amounted to an act of intervention in the internal
affairs of Nicaragua (para 227) this aspect is discussed below.

What is an armed attack?

A controversial but interesting aspect of the Courts judgement was its definition of an armed
attack. The Court held that an armed attack included:

(1) action by regular armed forces across an international border; and

(2) the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry
out acts of armed force against another State of such gravity as to amount to (inter alia) an actual armed
attack conducted by regular forces, or its (the States) substantial involvement therein
NB: The second point somewhat resembles Article 3 (g) of the UNGA Resolution 3314 (XXIX) on the
Definition of Aggression.

Mere frontier incidents are not considered as an armed attack unless because of its scale and
effects it would have been classified as an armed attack if it was carried out by regular forces.

20

Assistance to rebels in the form of provision of weapons or logistical support did not constitute an
armed attack it can be regarded as a threat or use of force, or an intervention in the internal or
external affairs of other States (see paras 195, 230).

Under Article 51 of the UN Charter and under CIL self-defence is only available against a use of
force that amounts to an armed attack (para 211).

NB: In in the Case Concerning Oil Platforms and the advisory opinion on the Legal Consequences of of the
Construction of a Wall in the Occupied Palestinian Territory (hereinafter called the Palestine wall case) the
ICJ upheld the definition of armed attack proposed in the Nicaragua case. In the Palestinian wall case,
the attacks from which Israel was claiming self defence originated from non-State actors. However, the
Court held that Article 51s inherent right of self defence was available to one State only against another
State (para 139). Judges Higgins, Buergenthal and Kooijmans opposed this narrow view. Articles on State
Responsibility, prepared by the International Law Commission, provided significant guidance as to when
acts of non-State actors may be attributed to States. These articles, together with recent State practice
relating attacks on terrorists operating from other countries (see legal opinions surrounding the United
States attack on Afghanistan), may have widened the scope of an armed attack, and consequently, the
right of self defence, envisaged by the ICJ.

2. The Court held that the United States could not justify its military and paramilitary
activities on the basis of collective self-defence.

Customary international law allows for exceptions to the prohibition on the use of force including
the right to individual or collective self-defence (for a difference between the two forms of self
defence, click here). The United States, at an earlier stage of the proceedings, had asserted that
the Charter itself acknowledges the existence of this customary international law right when it talks
of the inherent right of a State under Article 51 of the Charter (para.193).

When a State claims that it used force in collective self-defence, the Court would look into two
aspects:

(1) whether the circumstances required for the exercise of self-defence existed and
(2) whether the steps taken by the State, which was acting in self-defence, corresponds to the
requirements of international law (i.e. did it comply with the principles of necessity and proportionality).

Several criteria must be met for a State to exercise the right of individual or collective self-defence:

(1) A State must have been the victim of an armed attack;

(2) This State must declare itself as a victim of an armed attack; [NB: the assessment whether an armed
attack took place nor not is done by the state who was subjected to the attack. A third State cannot
exercise a right of collective self-defence based its (the third States) own assessment]; and

21
(3) In the case of collective self-defence the victim State must request for assistance (there is no rule
permitting the exercise of collective self-defence in the absence of a request by the State which regards
itself as the victim of an armed attack).
(4) The State does not, under customary international law, have the same obligation as under Article 51 of
the UN Charter to report to the Security Council that an armed attack happened but the absence of a
report may be one of the factors indicating whether the State in question was itself convinced that it was
acting in self-defence (see below).
At this point, the Court may consider whether in customary international law there is any
requirement corresponding to that found in the treaty law of the United Nations Charter, by which the
State claiming to use the right of individual or collective self-defence must report to an international body,
empowered to determine the conformity with international law of the measures which the State is seeking
to justify on that basis. Thus Article 51 of the United Nations Charter requires that measures taken by
States in exercise of this right of self-defence must be immediately reported to the Security Council. As
the Court has observed above (paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in
customary international law, may well be so unencumbered with the conditions and modalities surrounding
it in the treaty. Whatever influence the Charter may have had on customary international law in these
matters, it is clear that in customary international law it is not a condition of the lawfulness of the use of
force in self-defence that a procedure so closely dependent on the content of a treaty commitment and of
the institutions established by it, should have been followed. On the other hand, if self-defence is
advanced as a justification for measures which would otherwise be in breach both of the principle of
customary international law and of that contained in the Charter, it is to be expected that the conditions of
the Charter should be respected. Thus for the purpose of enquiry into the customary law position, the
absence of a report may be one of the factors indicating whether the State in question was itself convinced
that it was acting in self-defence (See paras 200, 232 -236).

The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and Honduras
in determining whether an armed attack was undertaken by Nicaragua against the three countries
which in turn would necessitate self-defence (paras 230 236). The Court referred to statements
made by El Salvador, Costa Rica, Honduras and the United States before the Security Council. None
of the countries who were allegedly subject to an armed attack by Nicaragua (1) declared
themselves as a victim of an armed attack or request assistance from the United States in selfdefence at the time when the United States was allegedly acting in collective self-defence; and (2)
the United States did not claim that it was acting under Article 51 of the UN Charter and it did not
report that it was so acting to the Security Council. The Court concluded that the United States
cannot justify its use of force as collective self-defence.

The criteria with regard to necessity and proportionality, that is necessary when using force in selfdefence was also not fulfilled (para 237).

3. The Court held that the United States breached its CIL obligation not to intervene
in the affairs of another State when it trained, armed, equipped and financed the
contra forces or encouraged, supported and aided the military and paramilitary
activities against Nicaragua.

22

The principle of non- intervention means that every State has a right to conduct its affairs without
outside interference i.e it forbids States or groups of States to intervene directly or indirectly in
internal or external affairs of other States. . This is a corollary of the principle of sovereign equality
of States.

A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by
the principle of State sovereignty to decide freely. One of these is the choice of a political, economic, social
and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of
coercion in regard to such choices, which must remain free ones. The element of coercion, which defines,
and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an
intervention which uses force, either in the direct form of military action, or in the indirect form of support
for subversive or terrorist armed activities within another State (para 205).

Nicaragua stated that the activities of the United States were aimed to overthrow the government
of Nicaragua and to substantially damage the economy and weaken the political system to coerce
the Government of Nicaragua to accept various political demands of the United States. The Court
held:

first, that the United States intended, by its support of the contras, to coerce the Government of
Nicaragua in respect of matters in which each State is permitted, by the principle of State sovereignty, to
decide freely (see paragraph 205 above) ; and secondly that the intention of the contras themselves was
to overthrow the present Government of Nicaragua The Court considers that in international law, if one
State, with a view to the coercion of another State, supports and assists armed bands in that State whose
purpose is to overthrow the government of that State, that amounts to an intervention by the one State in
the internal affairs of the other, whether or not the political objective of the State giving such support and
assistance is equally far reaching.

The financial support, training, supply of weapons, intelligence and logistic support given by the
United States to the contras was a breach of the principle of non-interference. no such general
right of intervention, in support of an opposition within another State, exists in contemporary
international law, even if such a request for assistance is made by an opposition group of that
State (see para 246 for more).

However, in a controversial finding, the Court held that the United States did not devise the
strategy, direct the tactics of the contras or exercise control on them in manner so as to make their
acts committed in violation of international law imputable to the United States (see in this
respect Determining US responsibility for contra operations under international law 81 AMJIL
86).T he Court concluded that a number of military and paramilitary operations of the contras were
decided and planned, if not actually by United States advisers, then at least in close collaboration
with them, and on the basis of the intelligence and logistic support which the United States was
able to offer, particularly the supply aircraft provided to the contras by the United States but not
all contra operations reflected strategy and tactics wholly devised by the United States.

In sum, the evidence available to the Court indicates that the various forms of assistance provided to the
contras by the United States have been crucial to the pursuit of their activities, but is insufficient to
demonstrate their complete dependence on United States aid. On the other hand, it indicates that in the

23
initial years of United States assistance the contra force was so dependent. However, whether the United
States Government at any stage devised the strategy and directed the tactics of the contras depends on
the extent to which the United States made use of the potential for control inherent in that dependence.
The Court already indicated that it has insufficient evidence to reach a finding on this point. It is a fortiori
unable to determine that the contra force may be equated for legal purposes with the forces of the United
StatesThe Court has taken the view (paragraph 110 above) that United States participation, even if
preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the
selection of its military or paramilitary targets, and the planning of the whole of its operation, is still
insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of
attributing to the United States the acts committed by the contras in the course of their military or
paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and
even the general control by the respondent State over a force with a high degree of dependency on it,
would not in themselves mean, without further evidence, that the United States directed or enforced the
perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State.
Such acts could well be committed by members of the contras without the control of the United States. For
this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved
that that State had effective control of the military or paramilitary.

Interesting, however, the Court also held that providing humanitarian aid to persons or forces in
another country, whatever their political affiliations or objectives, cannot be regarded as unlawful
intervention, or as in any other way contrary to international law (para 242).

In the event one State intervenes in the affairs of another State, the victim State has a right to
intervene in a manner that is short of an armed attack (210).

While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a
lesser degree of gravity cannot as the Court has already observed (paragraph 21 1 above). produce any
entitlement to take collective countermeasures involving the use of force. The acts of which Nicaragua is
accused, even assuming them to have been established and imputable to that State, could only have
justified proportionate counter-measures on the part of the State which had been the victim of these acts,
namely El Salvador, Honduras or Costa Rica. They could not justify counter-measures taken by a third
State, the United States, and particularly could not justify intervention involving the use of force.
4. The United States breached its customary international law obligation not to violate the
sovereignty of another State when it directed or authorized its aircrafts to fly over
Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its
territorial sea.

The ICJ examined evidence and found that in early 1984 mines were laid in or close to ports of the
territorial sea or internal waters of Nicaragua by persons in the pay or acting ion the instructions
of the United States and acting under its supervision with its logistical support. The United
States did not issue any warning on the location or existence of mines and this resulted in injuries
and increases in maritime insurance rates.

The court found that the United States also carried out high-altitude reconnaissance flights over
Nicaraguan territory and certain low-altitude flights, complained of as causing sonic booms.

24

The basic concept of State sovereignty in customary international law is found in Article 2(1) of the
UN Charter. State sovereignty extends to a States internal waters, its territorial sea and the air
space above its territory. The United States violated customary international law when it laid mines
in the territorial sea and internal waters of Nicaragua and when it carried
out unauthorised overflights over Nicaraguan airspace by aircrafts that belong to or was under the
control of the United States.

Material on the Nicaragua case

The following contains a list of scholarly articles and other material that discuss the Nicaragua case. If you
would like to add to the list, please note your suggestions in the comment box.
The judgment including separate opinions of individual judges and summaries of the judgment and orders
The World Court and Jus Cogens, 81 AMJIL 93, Gorden A. Christenson. Christenson argues that an
independent development of the customary law right divorced from the treaty can have wider
consequences:
We have then a double irony. The Court uses the United States position accepting the treaty norm against
the threat or use of force also as a customary norm possibly having jus cogens quality, in part, to justify
taking jurisdiction as a matter quite independent of the norm that otherwise falls under the multilateral
treaty reservation. Since there are two separate sources of the law, the choice of the one source rather
than the other means that the norm relied upon survives the jurisdictional bar to the use of the other. Yet
the two norms are not different enough to undermine completely the content of the Charter norm. This
formalism simply masks the more interesting question of the Courts institutional claim, given the
ineffectiveness of the UN Security system, to develop an international public order case by case, by
breaking away form the strictures of the Charter and treaty norms. The Court untied the treaty norms from
their constraints within the United Nations or regional collective security systems, a potentially
destabilizing decision, one whose consequences are unforeseen. The decision based on the validity of an
autonomous norm of customary international law free from the Charter is a constitutive one of potential
great significance (81 AMJIL 100, 1987).
Trashing customary international law, Antony DAmato, 81 AMJIL 102 (1987) (full text): (DAmato discusses
the paucity of State practice examined by the international court of justice before concluding that the
principle non-intervention formed part of customary international law. He argues that the acceptance of
General Assembly resolutions do not manifest opinio juris. He states that the Court failed to consider that
Article 2(4) continued to evolve through the years.)
The World Courts Achievement, Richard Falk, 81 AMJIL 106 (Falk takes a generally positive approach to the
judgment, gives a good overview of the case and Judge Shwebels dissent)
Drawing the right line, Tom J. Farer, 81 AMJIL 112 (Farer takes a cold-war contextual approach to the
judgment and supports the Courts narrow view of an armed attack and self defence).
Some observations on the ICJs procedural and substantive innovations, Thomas M. Franck, 81 AMJIL
116 (criticizes the determination of relevant State practice in relation to non-intervention and the reliance
on UN resolutions to illicit opinio juris (it alleges that the Court sought to harden soft law prematurely).

25
Frank points out that the interventions falling short of armed attacks would not allow States to target rebel
groups in another States territory even if the insurgency is planned, trained, armed and directed from that
territory).
Protecting the Courts institutional interests: Why not the Marbury approach? Michael J. Glennon, 81 AMJIL
121 (discusses reservations before the ICJ and the Courts prerogative to determine its own jurisdiction)
Discretion to decline to exercise jurisdiction, Edward Gorden, 81 AMJIL 129 (discusses the discretionary
power of the court to decline to exercise its jurisdiction at the merit stages).
The Nicaragua judgment and the future of the law of force and self-defense, John Lawrence Hargrove
81AMJIL 135 (Hargrove criticizes the ICJs construction of the notion of collective self defense, armed attack
and forcible countermeasures).
Somber reflections on the compulsory jurisdiction of the international court, Mark Weston Janis, 81 AMJIL
144
Custom on a sliding scale, Frederic L. Kirgis 81 AMJIL 146 (Kirgis discusses the relationship between State
practice and opinio juris, criticizes the methods (or lack thereof) of the Court in determining the customary
law nature of Article 2(4) of the Charter. Points out that actual State practice on intervention did not
support the Courts findings).
The International Court lives unto its name, Herbert W. Briggs, 81 AMJIL 78.
Determining US responsibility for contra operations under international law, Francis V. Boyle
Le peuple, cest moi!The world court and human rights, 81 AMJIL 173
LJIL Symposium: Discussion of the ICJ Nicaragua Judgment
The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful, or In Between?, Lori Fisler
Damrosch (Abstract: At the time the United States withdrew from participation in the Nicaragua case at the
International Court of Justice, the US government expressed concern that the course on which the Court
may now be embarked could do enormous harm to it as an institution and to the cause of international
law. This essay examines whether or to what extent the anticipated negative effects came to pass. It
concludes that dire predictions of harm to the Court were overstated. Twenty-five years later, the rate at
which states accept the Courts jurisdiction has held steady. Only a few states have added jurisdictional
reservations concerning military activities. The mix of cases being brought to the Court has shifted towards
a more representative distribution. States are generally complying with the Courts decisions, though some
compliance problems remain. The most serious negative impact has been on the willingness of the United
States (still the Courts most active litigant) to participate fully in international dispute settlement.)
LJIL Symposium: The Nicaragua Case: Its Impact, John Dugard
LJIL Symposium: Response of Lori F. Damrosch to Comments by John Dugard, Lori F. Damrosch

26
The Principle of Non-Intervention 25 Years after the Nicaragua Judgment, by Marcelo Kohen(Abstract: This
article focuses on the analysis by the International Court of Justice of the principle of non-intervention in
domestic affairs in its judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities
in and against Nicaragua and contrasts it with the evolution of international law and practice in this field. It
is proposed that the Courts 1986 analysis not only remains of actuality today, but also constitutes a
precursor to legal developments that have since taken place. This is particularly the case with regard to
the relationship between the protection of human rights on the one hand and the safeguard of state
sovereignty and the collective security regime on the other. The 1986 judgment helped to clarify the
content of humanitarian assistance. It constituted the starting point for the development of this concept in
a series of GA resolutions that were subsequently adopted. The controversial doctrine of humanitarian
intervention, as well as state practice in violation of this principle, in no way led to modifying existing
international law. Similarly, the new concept of responsibility to protect, which places emphasis on
collective security and discounts unilateral action, has not led to the disappearance of the principle of nonintervention either.)

_________________________

27

OPINIO JURIS
What is opinio juris?
1. Article 38 (1) (b) of the Statute of the International Court of Justice explains customary international law
as comprising of (1) a general practice (2) accepted as law. The general practice or state practice was
discussed in an earlier post. The ICJ, in its jurisprudence, has relied on, and interpreted, Article 38 (1) (b) to
include two elements that assist the Court to determines the existence of an alleged customary
international law state practice and opinio juris (also known as opinio juris sive necessitates). The ICJ
explained opinio juris, in the Nicaragua case, as follows:
[] for a new customary rule to be formed, not only must the acts concerned amount to a settled
practice, but they must be accompanied by opinio juris sive neccessitatis. Either the States taking such
action or other States in a position to react to it, must have behaved so that their conduct is evidence of a
belief that the practice is rendered obligatory by the existence of a rule of law requiring it. The need for
such belief..the subjective element, is implicit in the very notion of opinio juris sive neccessitatis.
2. In the North Sea Continental Shelf Cases, the Court examined 15 cases where States had delimited their
boundaries using the equidistance method, after the Convention came into force. 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. 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.
3. State practice is often seen as a reflection of opinio juris. In the Asylum case, the court held that the
relevant practice must be consistent and uniform to show an expression of a right belonging to one state
and a duty incumbent on another. The court held that Columbia did not prove the existence of a regional
custom because it failed to prove consistent and uniform usage of the alleged custom by relevant States.
The fluctuations and contradictions in State practice did not allow for the uniform usage ( see also
Nicaragua case, p. 98). The court held in the Asylum case:
The Party which relies on a custom of this kind must prove that this custom is established in such a
manner that it has become binding on the other Party (that) it is in accordance with a (1) constant and
uniform usage (2) practiced by the States in question, and that this usage is (3) the expression of a right
appertaining to the State granting asylum (Columbia) and (4) a duty incumbent on the territorial State (in
this case, Peru). This follows from Article 38 of the Statute of the Court, which refers to international
custom as evidence of a general practice accepted as law(text in brackets added).
4. The fact that a state undertakes a particular because of political expediency and not because of a belief
that the said practice is binding on the State by way of a legal obligation (opinio juris) is detrimental to the
formation of a customary law. In the Asylum case the Court said: considerations of convenience or
political expediency seemed to have prompted the territorial State to recognise asylum without such a
decision being dictated by any feeling of legal obligation.(see also North Sea Continental Shelf
Cases and Lotus Case).
5. 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. In the Lotus case, France alleged that jurisdictional questions on collision cases
are rarely heard in criminal cases because States tend to prosecute only before the flag State. France
argued that this absence of prosecutions points to a positive rule in customary law on collisions. The Court
held that this,
would merely show that States had often, in practice, abstained from instituting criminal proceedings,
and not that they recognized themselves as being obliged to do so; for only if such abstention were
based on their being conscious of having a duty to abstain would it be possible to speak of an international
custom. The alleged fact does not allow one to infer that States have been conscious of having such a

28
duty; on the other hand, as will presently be seen, there are other circumstances calculated to show that
the contrary is true.
6.In the North Sea Continental Shelf Cases, the ICJ explained 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.
7. If a state acts in a particular way using its discretion, then, too, the relevant opinio juris is lacking. In the
Rights of Passage case, the ICJ held:
It would thus appear that, during the British and post-British periods, Portuguese armed forces and armed
police did not pass between Daman and the enclaves as of right and that, after 1878, such passage could
only take place with previous authorization by the British and later by India, accorded either under a
reciprocal arrangement already agreed to, or in individual cases. Having regard to the special
circumstances of the case, this necessity for authorization before passage could take place constitutes, in
the view of the Court, a negation of passage as of right. The practice predicates that the territorial
sovereign had the discretionary power to withdraw or to refuse permission. It is argued that permission
was always granted, but this does not, in the opinion of the Court, affect the legal position. There is
nothing in the record to show that grant of permission was incumbent on the British or on India as an
obligation.

--------------------------------------------Does Portugal have a customary right over Indian territory to its enclaves?
DecisionEdit
A right of passage does exist in regional custom.
ReasonsEdit
India argued before the Court that practice between only two states was not sufficient to form a local
custom. The Court rejected this reasoning, finding no reason why a century and a quarter of practice based
on mutual rights and obligations was insufficient for local custom to arise. This local practice, thus,
prevailed over any general rules.
RatioEdit
Local customary law can exist as long as the elements in the North Sea Continental Shelf case are made
out.