NORTH

SEA CONTINENTAL SHELF CASES (SUMMARY) shelf as between their countries, by agreement, after the
International Court of Justice Contentious Case: The determination of the Court on the applicable principles.
North Sea Continental Shelf Cases (Germany/Denmark;
Germany/Netherlands). Facts of the Case:

Year of Decision: 1969. Netherlands and Denmark had drawn partial boundary
lines based on the equidistance principle (A-B and C-D).
Note: This post discusses only aspects of the case related An agreement on further prolongation of the boundary
to treaty and customary international law. proved difficult because Denmark and Netherlands
wanted this prolongation to take place based on the
Overview: The jurisprudence of the North Sea equidistance principle (B-E and D-E) where as Germany
Continental Shelf Cases sets out the dual requirement for was of the view that, together, these two boundaries
the formation of customary international law: (1) State would produce an inequitable result for her. Germany
practice (the objective element) and (2) opinio juris (the stated that due to its concave coastline, such a line would
subjective element). In these cases, the Court explained result in her loosing out on her share of the continental
the criteria necessary to establish State practice – shelf based on proportionality to the length of its North
widespread and representative participation. It Sea coastline. The Court had to decide the principles and
highlighted that the practices of those States whose rules of international law applicable to this delimitation.
interests were specially affected by the custom were In doing so, the Court had to decide if the principles
especially relevant in the formation of customary law. It espoused by the parties were binding on the parties
also held that uniform and consistent practice was either through treaty law or customary international law.
necessary to demonstrate opinio juris – opinio juris is the
belief that State practice amounts to a legal obligation. Screen Shot 2017-04-09 at 6.26.16 PM
The North Sea Continental Self Cases also dispelled the North Sea Continental Shelf Cases
myth that duration of the practice (i.e. the number of (commons.wikimedia.org)
years) was an essential factor in forming customary
international law. Questions before the Court (as relevant to this post):

The case involved the delimitation of the continental Is Germany under a legal obligation to accept the
shelf areas in the North Sea between Germany and equidistance-special circumstances principle, contained
Denmark and Germany and Netherlands beyond the in Article 6 of the Geneva Convention on the Continental
partial boundaries previously agreed upon by these Shelf of 1958, either as a customary international law
States. The parties requested the Court to decide the rule or on the basis of the Geneva Convention?
principles and rules of international law that are
applicable to the above delimitation because the parties The Court’s Decision:
disagreed on the applicable principles or rules of
delimitation. Netherlands and Denmark relied on the The use of the equidistance method had not crystallised
principle of equidistance (the method of determining the into customary law and the method was not obligatory
boundaries in such a way that every point in the for the delimitation of the areas in the North Sea related
boundary is equidistant from the nearest points of the to the present proceedings.
baselines from which the breath of the territorial sea of
each State is measured). Germany sought to get a Relevant Findings of the Court:
decision in favour of the notion that the delimitation of
the relevant continental shelf was governed by the 1. Nature of the treaty obligation: Is the 1958 Geneva
principle that each coastal state is entitled to a just and Convention, and in particular Article 6, binding on
equitable share (hereinafter called just and equitable Germany?
principle/method). Contrary to Denmark and
Netherlands, Germany argued that the principle of 1. Article 6 of the Geneva Convention stated that unless
equidistance was neither a mandatory rule in the parties had already agreed on a method for
delimitation of the continental shelf nor a rule of delimitation or unless special circumstances exist, the
customary international law that was binding on equidistance method would apply. Germany had signed,
Germany. The Court was not asked to delimit because but not ratified, the Geneva Convention, while
the parties had already agreed to delimit the continental Netherlands and Denmark were parties to the
Convention. The latter two States argued that while support an argument for estoppel. The Court also held
Germany is not a party to the Convention (not having that the mere fact that Germany may not have
ratified it), she was still bound by Article 6 of the specifically objected to the equidistance principle as
Convention because: contained in Article 6, is not sufficient to state that the
principle is now binding upon it.
“…(1) by conduct, by public statements and
proclamations, and in other ways, the Republic has 5. In conclusion, the Court held that Germany had not
unilaterally assumed the obligations of the Convention; acted in any manner so as to incur obligations contained
or has manifested its acceptance of the conventional in Article 6 of the Geneva Convention. The equidistance–
regime; or has recognized it as being generally applicable special circumstances rule was not binding on Germany
to the delimitation of continental shelf areas… by way of treaty law.

(2) the Federal Republic had held itself out as so 2. Nature of the customary international law obligation:
assuming, accepting or recognizing, in such a manner as Is Germany bound by the provisions of Article 6 of the
to cause other States, and in particular Denmark and the Geneva Convention in so far as they reflect customary
Netherlands, to rely on the attitude thus taken up” (the international law?
latter is called the principle of estoppel).
6. Netherlands and Denmark argued that Article 6 also
2. The Court rejected the first argument. It said that only reflected ‘the accepted rule of general international law
a ‘very definite very consistent course of conduct on the on the subject of continental shelf delimitation’ and that
part of a State would allow the Court to presume that the it existed independently of the Convention. Therefore,
State had somehow become bound by a treaty (by a they argued, Germany is bound by the subject matter of
means other than in the formal manner: i.e. ratification) Article 6 by way of customary international law.
when the State was ‘at all times fully able and entitled
to…’ accept the treaty commitments in a formal manner. 7. To decide if the equidistance principle bound Germany
The Court held that Germany had not unilaterally by way of customary international law, the Court
assumed obligations under the Convention. The court examined (1) the status of the principle contained in
also took notice of the fact that even if Germany ratified Article 6 as it stood when the Convention was being
the treaty, she had the option of entering into a drawn up; and (2) its status after the Convention came
reservation on Article 6, following which that particular into force.
article would no longer be applicable to Germany (in
other words, even if one were to assume that Germany (a) What was the customary law status of Article 6 at the
had intended to become a party to the Convention, it time of drafting the Convention?
does not presuppose that it would have also undertaken
those obligations contained in Article 6). 8. The Court held that the principle of equidistance, as
contained in Article 6 did not form a part of existing or
3. Note: The Vienna Convention on the Law of Treaties of emerging customary international law at the time of
1969 (VCLT), which came into force in 1980, discusses in drafting the Convention. The Court supported this
more detail treaty obligations of third States (those finding based on (1) the hesitation expressed by the
States who are not parties to the treaty). It clearly drafters of the Convention, the International Law
stipulates that obligations arise for third States from a Commission, on the inclusion of Article 6 into the
provision of a treaty only if (1) the actual parties to the Convention and (2) the fact that reservations to Article 6
treaty intended the provision to create obligations for was permissible under the Convention. The Court held:
third States; and (2) third State expressly accept those
obligations in writing (Article 35 of the VCLT). The VCLT “… Article 6 is one of those in respect of which, under the
was not in force when the Court deliberated on this case. reservations article of the Convention (Article 12)
However, as seen above, the Court’s position is reservations may be made by any State on signing,
consistent the VCLT. (See the relevant provisions of the ratifying or acceding, – for speaking generally, it is a
Vienna Convention on the Law of Treaties). characteristic of purely conventional rules and
obligations that, in regard to them, some faculty of
4. The Court held that the existence of a situation of making unilateral reservations may, within certain limits,
estoppel would have allowed Article 6 to become binding be admitted; whereas this cannot be so in the case of
on Germany – but held that Germany’s action did not general or customary law rules and obligations which, by
their very nature, must have equal force for all members 12. The Court held that the duration taken for a
of the international community, and cannot therefore be customary law rule to emerge is not as important as
the subject of any right of unilateral exclusion exercisable widespread and representative participation, uniform
at will by any one of them in its own favor…. The normal usage, and the existence of an opinio juris. It held that:
inference would therefore be that any articles that do
not figure among those excluded from the faculty of “Although the passage of only a short period of time (in
reservation under Article 12, were not regarded as this case, 3 – 5 years) is not necessarily, or of itself, a bar
declaratory of previously existing or emergent rules of to the formation of a new rule of customary international
law …” (see para 65 for a counter argument and the law on the basis of what was originally a purely
Court’s careful differentiation) conventional rule, an indispensable requirement would
be that within the period in question, short though it
(b) Did the provisions in Article 6 on the equidistance might be, State practice, including that of States whose
principle attain the customary law status after the interests are specially affected, should have been both
Convention came into force? extensive and virtually uniform in the sense of the
provision invoked and should moreover have occurred in
9. The Court then examined whether the rule contained such a way as to show a general recognition that a rule
in Article 6 had become customary international law of law or legal obligation is involved.”
after the Convention entered into force – either due the
Convention itself (i.e., if enough States had ratified the Opinio juris
Convention in a manner so as to fulfil the criteria
specified below), or because of subsequent State 13. Opinio juris is reflected in acts of States (Nicaragua
practice (i.e. even if an adequate number of States had Case) or in omissions (Lotus case), in so far as those acts
not ratified the Convention, one could find sufficient or omissions were done following a belief that the said
State practice to meet the criteria below). The Court held State is obligated by law to act or refrain from acting in a
that Article 6 of the Convention had not attained a particular way. (For more on opinio juris click here).
customary law status. (Compare the 1958 Geneva
Convention with the four Geneva Conventions on 1949 14. The Court examined 15 cases where States had
relating to international humanitarian law in terms of the delimited their boundaries using the equidistance
latter’s authority as a pronouncement of customary method, after the Convention came into force (paras. 75
international law). -77). The Court concluded that even if there were some
State practice in favour of the equidistance principle, the
10. For a customary rule to emerge the Court held that it Court could not deduct the necessary opinio juris from
needed: (1) very widespread and representative this State practice. The North Sea Continental Shelf Cases
participation in the Convention, including States whose confirmed that both State practice (the objective
interests were specially affected (in this case, they were element) and opinio juris (the subjective element) are
coastal States) (i.e. generality); and (2) virtually uniform essential pre-requisites for the formation of a customary
practice (i.e. consistent and uniform usage) undertaken law rule. This is consistent with Article 38 (1) (b) of the
in a manner that demonstrates (3) a general recognition Statute of the ICJ. The Court explained the concept of
of the rule of law or legal obligation (i.e. opinio juries). In opinio juris and the difference between customs (i.e.
the North Sea Continental Shelf cases the court held that habits) and customary law:
the passage of a considerable period of time was
unnecessary (i.e. duration) for the formation of a “Not only must the acts concerned amount to a settled
customary law. 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
Widespread and representative participation is rendered obligatory by the existence of a rule of law
requiring it. The need for such a belief, i.e, the existence
11. The Court held that the first criteria was not met. The of a subjective element, is implicit in the very notion of
number of ratifications and accessions to the Convention the opinio juris sive necessitatis. The States concerned
(39 States) were not adequately representative or must therefore feel that they are conforming to what
widespread. amounts to a legal obligation. The frequency, or even
habitual character of the acts is not in itself enough.
Duration There are many international acts, e.g., in the field of
ceremonial and protocol, which are performed almost
invariably, but which are motivated only by
considerations of courtesy, convenience or tradition, and
not by any sense of legal duty.” (Para 77).

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