Facts of the Case:

Netherlands and Denmark had drawn partial boundary lines based on the equidistance
principle(A-B and C-D). 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 D-E) 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:
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?
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
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.