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The North Sea Continental Shelf Cases

Submitted to the ICJ: February 20, 1967 Cases Joined by the ICJ: April 26, 1968 Judgment Rendered by the ICJ: February 20, 196

Introduction
Two joined cases: Germany v The Netherlands and Germany v Denmark. The cases involved the delimitation of the continental shelf between these countries.

The cases were joined as they involved the same issue.

Parties

Federal Republic

Denmark and

of Germany

vs.

the Netherlands

Composition of ICJ
17 judges heard the case. Germany entitled to appoint an ad hoc judge to hear the case.

The Netherlands and Denmark agreed that, because they were parties in the same interest (for the purposes of Art 31 of the ICJ Statute) they would appoint one ad hoc judge between them

Continental Shelf

By definition, the continental shelf extends beyond the territorial seas throughout the natural prolongation of a coastal states land territory (Art 76 UNCLOS)

Continental shelf: extended perimeter of each continent and associated coastal plain.

Background
The North Sea is rich in natural resources (particularly oil & gas).

All three countries are bordering the North Sea.


How was the boundary in respect of the continental shelf to be determined between these countries? Article 6 Geneva Convention of 1958 says that if there are two countries separated by a sea, the boundary between then should be calculated as the point equidistant from both coastlines. This is known as the equidistance principle.

It is important to know where the boundary is because a country can drill for oil in the seabed within their territory.

Background cont.
Germany lies between the Netherlands and Denmark. Germanys coastline is concave, whereas the Dutch and Danish coastlines are convex. Concave coastline: equidistance method would pull boundary lines inward causing the equidistance lines to meet at relatively short distance from the coastline Convex coastline: have the opposite affect and would tend to widen the area of the continental shelf Therefore, a boundary which was perpendicular to the coastline would lead to Germanys continental shelf being enclosed.

Dispute
Source: Common Wadden Sea Secretariat

Delimitation of the Continental Shelf

Geneva Convention - Continental Shelf (1958)


Article 6 1. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. 2. Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. 3. In delimiting the boundaries of the continental shelf, any lines which are drawn in accordance with the principles set out in paragraphs 1 and 2 of this article should be defined with reference to charts and geographical features as they exist at a particular date, and reference should be made to fixed permanent identifiable points on the land.

The Contentions
In 1964 and 1965, the parties had agreed to partial boundaries of the continental shelf, but were unable to agree on the prolongation of the boundaries The parties asked the ICJ to determine the relevant international law applicable to determine their dispute. The parties did not ask the ICJ to determine the relevant boundaries, rather the parties agreed to follow the principles laid down by the ICJ in agreeing such boundaries.

The Danish and Dutch contentions


Both states argued that the principle of equidistance (in accordance with Art 6 of the Geneva Convention of 1958 on the Continental Shelf) should apply to determine the boundaries. This principle stated that a coastal state was entitled to each part of the continental shelf that was closer to its territory than any other states territory. Both states argued that Art 6 formed part of customary international law.

The German contentions


Germany had not ratified the 1958 Convention, and Art 6 does not form part of customary international law. The governing principle should be that each coastal state is entitled to a just and equitable share of the continental shelf.

Even if Art 6 were customary international law, then special circumstances existed for not applying the equidistance principle.

The Legal Questions:


Is Article 6 of Geneva Convention on the Continental Shelf (1958) binding for all the parties in the case ? Is customary international law applicable ?

ICJ decision
Decided the case 11-6. Found that Germany was not bound by Art 6 as it had not ratified it. Moreover, the equidistance principle did not form part of customary international law.

ICJ decision cont.


However, the ICJ did not accept that each state was entitled to a just and equitable share of the continental shelf (as argued for by Germany). There was no rule of law which allowed the ICJ to carry out an equitable apportionment of the continental shelf between coastal states.

To do so would go against the principle that the shelf was a natural extension of the coastal states land, which the coastal state had a natural right to.

ICJ decision cont.


The ICJ therefore held that the parties were obligated to try to agree the division of the continental shelf based on equitable principles. Insofar as was possible, each state was entitled to the continental shelf which was a natural prolongation of its land. To the extent that this led to overlapping claims to part of the continental shelf, then the parties should agree as to how those parts should be delimited (and failing agreement, they should be divided equally).

ICJ decision cont


The ICJ held that the relevant equitable principles to be taken into account by the parties were:
The configuration of the coastline (including any special or unusual features); The natural resources, and physical structure, of the continental shelf; and

The delimitation should have a reasonable degree of proportionality as between the states.

Aftermath of decision
The parties agreed the delimitation of the continental shelf in accordance with the equitable principles discussed by the ICJ. The result was largely in favor of Germany, as the agreed continental shelf largely reflected its original position. This case stands for the proposition that countries do not need to follow the equidistance principle if it was inequitable. Later, this theory of equity was codified in Article 83 of the Convention on the Law of the Sea (1833 U.N.T.S. 3 (1982)),

North Sea Continental Shelf


Inequitable Result (Using Equidistant) Agreed Boundaries: C-D and A-B Denmark: B-E Netherlands: D-E Germany: D-F and B-F

Southern North Sea


Source: repository.tudelft. nl/assets/uuid:ee 5cf5d5.../NorthS eaCoast9301.pdf

Side by Side Comparison

Source: http://www.acls-aatc.ca/node/304

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