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NORTH SEA CONTINENTAL SHELF CASES

ASHUTOSH SINGH
B.A.LL.B (HONS.)
ROLL NO. - 27

FACULTY OF LAW,
UNIVERSITY OF ALLAHABAD
Under the able guidance of
Mr. U. Chandra

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INDEX
S. No.
1
2
3
4
5
6
9

Description
Acknowledgement
Introduction
Questions before the court
Widespread and
Representative Participation
Duration
Opinio Juris
Bibliography

Page No.
3
4
6
8
8
9
10

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ACKNOWLEDGEMENT
I would like to express my deepest gratitude towards my teacher Mr. U. Chandra for his
excellent guidance and valuable suggestions that have helped me in completing this project. His
teachings and an outstanding command in the subject has given me an opportunity to understand
it in a better way.
I would also like to thank my family and friends who have supported me in making this project
better and without which this project was impossible.
Fair criticism for the betterment of this project is most welcome and will be highly appreciable.
Ashutosh Singh,
VII Semester,
Roll No. 27,
Section A,
B.A. LLB (Hons.).

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INTRODUCTION
The Court delivered judgment, by 11 votes to 6, in the North Sea Continental Shelf cases. The
dispute, which was submitted to the Court on 20 February 1967, related to the delimitation of the
continental shelf between the Federal Republic of Germany and Denmark on the one hand, and
between the Federal Republic of Germany and the Netherlands on the other. The Parties asked
the Court to state the principles and rules of international law applicable, and undertook
thereafter to carry out the delimitations on that basis. The Court rejected the contention of
Denmark and the Netherlands to the effect that the delimitati.ons in question had to be carried
out in accordance with the principle of equidistance as defined in Article 6 of the 1958 Geneva
Convention on the Continental Shelf, holding: -that the Federal Republic, which had not ratified
the Convention, was not legally bound by the provisions of Article 6; -that the equidistance
principle was not a necessary consequence of the general concept of continental shelf rights, and
was not a rule of customary international law. The Court also rejected the contentions of the
Federal Republic in so far as these sought acceptance of the principle of an apportionment of the
continental shelf into just and equitable shares. It held that each Party had an original right to
those areas of the continental shelf which constituted the natural prolongation of its land territory
into1 and under the sea. It was not a question of apportioning or sharing out those areas, but of
delimiting them. The Court found that the boundary lines in question were to be drawn by
agreement between the Parties and in accordance with equitable principles, and it indicated
certain factors to be taken into consideration for that purpose. It was now for the Parties to
negotiate on the basis of such principles, as they have aped to do. The proceedings, relating to
the delimitation as between the Parties of the areas of the North Sea continental shelf
appertaining to each of them, were instituted on 20 February 1967 by the communication to the
Registry of the Court of two Special Agreements, between Denmark and the Federal Republic
and the Federal Republic and the Netherlands respectively. By an Order of 26 April 1968, the
Court joined the proceedings in the two cases. The Court decided the two cases in a single
Judgment, which it adopted by eleven votes to six. Amongst the Members of the Court
concurring in the Judgment, Judge Sir Muhammad Zafrulla Khan appended a declaration; and
President Bustamante y Rivero and Judges Jessup, hdilla Nervo and Amrnoun appended separate
opinions. In the case of the nonconcumng Judges, a declaration of his dissent was appended by
Judge Bengzon; and Vice-President Koretsky, together with Judges Tanaka, Morelli and Lachs,
and Judge ad hoc Serensen, antended dissenting opinions. In its Judgment, the Court examined in
the context of the delimitations concerned the problems relating to the legal dgime of the
continental shelf raised by the contentions of the Parties.

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Name of the Case: The North Sea Continental Shelf Cases (Germany/Denmark;
Germany/Netherlands); Year of Decision: 1969; and Court: ICJ.
Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the dual
requirement for forming customary international law State practice (objective element) and
opinio juris (subjective element). It elaborated the criteria necessary to establish State practice
widespread and representative participation. The case highlighted that the State practice
of importance were of those States whose interests were affected by the custom. It also identified
the fact that uniform and consistent practice was necessary to show opinio juris a belief that the
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.
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 ICJ to decide the principles and rules of
international law that are applicable to the above delimitation. 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 favour of the
notion that the delimitation of the relevant continental shelf is 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 not binding on Germany. The court was not asked to
delimit the parties agreed to delimit the continental shelf as between their countries, by
agreement, after the determination of the ICJ on the applicable principles.
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 losing 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.

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QUESTIONS BEFORE THE COURT

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 crystallized 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

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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?

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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 fulfill 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 were 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).

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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
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.
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.

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BIBLIOGRAPHY
The resources that have helped me in completing this project are as follow1.
2.
3.
4.
5.

www.wikipedia.org
www.icj-cij.org
www.scribd.com
www.wordpress.com
www.casebriefs.com