YVONNE NICOLE C.

GARBANZOS
HUMAN RIGHTS LAW

LLB-4

NORTH SEA CONTINENTAL SHELF CASE

(Federal Republic of Germany vs. The Netherlands and Denmark)
FACTS:
The North Sea Continental Shelf lies adjacent to the States of the Federal Republic
of Germany, the Netherlands and Denmark. The three states determined the
delimitation of their respective boundaries in the continental shelf by way of an
agreement between Germany and Netherlands on December 1, 1964 and between
Germany and Denmark on June 9, 1965.
Netherlands and Denmark wanted to extend their boundaries so they executed
another agreement on the basis of the equidistance principle. Germany opposed the
said agreement since the effect of the equidistance principle to a concave coast
such as Germanys was to pull the line of the boundary inwards into the direction of
concavity, thus cutting off the coastal state from the area of the continental shelf
outside. In contrast, the effect of concavity to the Netherlands and Denmark was to
cause the equidistance lines to move on divergent courses, thus having a widening
tendency on the continental shelf off that coast.
The parties submitted their differences to the Court. Netherlands and Denmark
contended that the method of delimitation that should be used is the Equidistance
Principle or the concept that a nations maritime boundaries should conform to a
median line equidistant from the shores of neighboring nation-states as embodied in
Article 6 of the 1958 Geneva Convention and that Germany is under a legal
obligation to accept the equidistance principle contained in Article 6 of the Geneva
Convention since it is a customary international law rule. Germany, on the other
hand, contended that the obligatory character of the Geneva Convention is not
binding for States who are not parties to it and contends that the correct rule to be
applied is one where each of the states concerned should have a just and equitable
share of the available continental shelf, in proportion to the length of its coastline or
sea-frontage.
ISSUES:
1. Whether or not Germany is bound by Article 6 of the 1958 Geneva Convention on
the basis of its status as customary international law.
2. Whether or not the area entitled to Germany should be apportioned based on
just and equitable principles.
3. What principle of international law is binding between the parties.
RULING:
1. No.
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 also laid down the elements in order to consider a convention as
customary international law which are (1) very widespread and representative
participation in the convention, including States whose interests were specially
affected (i.e. generality); (2) virtually uniform practice (i.e. consistent and uniform
usage) and (3) a general recognition of the rule of law or legal obligation (i.e. opinio
juris).
In the present case, the 1958 Geneva Convention did not ripen into customary
international law. 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. Also, there was no consistent and
uniform usage since there were only 15 cases where States had delimited their
boundaries using the equidistance method, after the Convention came into force.
Lastly, not a great number of States concerned agreed or did draw the boundaries
concerned according to the principle of equidistance. There is no evidence that they
so acted because they felt legally compelled to draw them by reason of a rule of
customary international law obliging them to do so which is the basis of the
principle of opinio juris sive necessitatis.
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.
2. No.
The Court ruled that there was no necessity for apportioning a just and equitable
share of the continental shelf to Germany since the rights of the coastal state in
respect to the area of the continental shelf that constitutes the natural prolongation
of its land territory into and under the sea exist ipso facto and ab initio, by virtue of
its sovereignty over the land, and as an extension of it.
No special legal process has to be gone through, nor have any special legal acts to
be performed.
3. The agreement of the states concerned according to just and equitable principles
should be followed.
The Court ruled that the matter of delimitation derived from the Truman
proclamation where that it must be the object of the agreement of the parties
concerned and that such agreement must be arrived at in accordance with
equitable principles. The parties were under the obligation to act in such a wa that
in the particular case, equitable principles were applied. The Courts decision was
made ex aqeuo et bono.