NORTH SEA CONTINENTAL SHELF CASES (SUMMARY)

Year of Decision: 1969.

Overview:
The jurisprudence of the North Sea Continental Shelf Cases sets out the dual requirement for the formation of
customary international law:
(1) State practice (the objective element) and
(2) opinio juris (the subjective element). In these cases, the Court explained the criteria necessary to establish
State practice widespread and representative participation.
It highlighted that the practices of those States whose interests were specially affected by the custom were
especially relevant in the formation of customary law. It also held that uniform and consistent practice was necessary to
demonstrate opinio juris opinio juris is the belief that State practice amounts to a legal obligation.
The North Sea Continental Self Cases also dispelled the myth that duration of the practice (i.e. the number of
years) was an essential factor in forming customary international law.

FACTS:
The case involved the delimitation of the continental shelf areas in the North Sea between Germany and
Denmark and Germany and Netherlands beyond the partial boundaries previously agreed upon by these States. The
parties requested the Court to decide the principles and rules of international law that are applicable to the above
delimitation because the parties disagreed on the applicable principles or rules of delimitation. Netherlands and
Denmark relied on the principle of equidistance (the method of determining the boundaries in such a way that every
point in the boundary is equidistant from the nearest points of the baselines from which the breath of the territorial sea
of each State is measured). Germany sought to get a decision in favor of the notion that the delimitation of the relevant
continental shelf was governed by the principle that each coastal state is entitled to a just and equitable share
(hereinafter called just and equitable principle/method). Contrary to Denmark and Netherlands, Germany argued that
the principle of equidistance was neither a mandatory rule in delimitation of the continental shelf nor a rule of
customary international law that was binding on Germany. The Court was not asked to delimit because the parties had
already agreed to delimit the continental shelf as between their countries, by agreement, after the determination of the
Court on the applicable principles.

ISSUE: Whether or not Article 6 of the 1958 Geneva Convention on the Continental Shelf had attained a customary law
status.

RULING:
The Court held that Article 6 of the Convention had not attained a customary law status. For a customary rule to
emerge the Court held that it needed: (1) very widespread and representative participation in the Convention, including
States whose interests were specially affected (in this case, they were coastal States) (i.e. generality); and (2) virtually
uniform practice (i.e. consistent and uniform usage) undertaken in a manner that demonstrates (3) a general recognition
of the rule of law or legal obligation (i.e. opinio juries). In the North Sea Continental Shelf cases the court held that the
passage of a considerable period of time was unnecessary (i.e. duration) for the formation of a customary law.

Widespread and representative participation

The Court held that the first criteria was not met. The number of ratifications and accessions to the Convention
(39 States) were not adequately representative or widespread.

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Duration
The Court held that the duration taken for a customary law rule to emerge is not as important as widespread
and representative participation, uniform usage, and the existence of an opinio juris. It held that:

Although the passage of only a short period of time (in this case, 3 5 years) is not necessarily, or of itself, a
bar to the formation of a new rule of customary international law on the basis of what was originally a purely
conventional rule, an indispensable requirement would be that within the period in question, short though it might be,
State practice, including that of States whose interests are specially affected, should have been both extensive and
virtually uniform in the sense of the provision invoked and should moreover have occurred in such a way as to show a
general recognition that a rule of law or legal obligation is involved.

Opinio juris
Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case), in so far as those acts or
omissions were done following a belief that the said State is obligated by law to act or refrain from acting in a particular
way.

The Court examined 15 cases where States had delimited their boundaries using the equidistance method, after
the Convention came into force (paras. 75 -77). The Court concluded that even if there were some State practice in favor
of the equidistance principle, the Court could not deduct the necessary opinio juris from this State practice. The North
Sea Continental Shelf Cases confirmed that both State practice (the objective element) and opinio juris (the subjective
element) are essential pre-requisites for the formation of a customary law rule. This is consistent with Article 38 (1) (b)
of the Statute of the ICJ. The Court explained the concept of opinio juris and the difference between customs (i.e. habits)
and customary law:

Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out
in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law
requiring it. The need for such a belief, i.e, the existence of a subjective element, is implicit in the very notion of the
opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a
legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many
international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are
motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty. (Para 77).

The Court concluded that the equidistance principle was not binding on Germany by way of treaty or
customary international law. In the case of the latter, the principle had not attained a customary international law
status at the time of the entry into force of the Geneva Convention or thereafter. As such, the Court held that the use of
the equidistance method is not obligatory for the delimitation of the areas concerned in the present proceedings.

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