International Court of Justice Contentious Case: The North Sea Continental Shelf Cases

(Germany/Denmark; Germany/Netherlands).

Year of Decision: 1969.

Note: This post discusses only aspects of the case related to treaty and customary international
law.

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.

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 favour 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.

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 wanted 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.

North Sea Continental Shelf Cases (commons.wikimedia.org)

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 on the Continental Shelf of 1958, 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 the method
was not obligatory for the delimitation of the areas in the North Sea related to the present
proceedings.

Relevant Findings of the Court:

1. 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 stated that unless the parties had already agreed on a
method for delimitation or unless special circumstances exist, the equidistance method would
apply. Germany had signed, but not ratified, the Geneva Convention, while Netherlands and
Denmark were parties to the Convention. The latter two States argued that while Germany is not
a party to the Convention (not having ratified it), she was 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 said that only a very definite very consistent course
of conduct on the part of a State would allow the Court to presume that the State had somehow
become bound by a treaty (by a means other than in the 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 (in other words, 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. Note: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force in
1980, discusses in more detail treaty obligations of third States (those States who are not
parties to the treaty). It clearly stipulates that obligations arise for third States from a provision
of a treaty only if (1) the actual parties to the treaty intended the provision to create obligations
for third States; and (2) third State expressly accept those obligations in writing (Article 35 of
the VCLT). The VCLT was not in force when the Court deliberated on this case. However,
as seen above, the Courts position is 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 manner so as to incur
obligations contained in Article 6 of the Geneva Convention. The equidistancespecial
circumstances rule was not binding on Germany by way of treaty law.

2. Nature of the customary international law obligation: Is Germany bound by the provisions of
Article 6 of the Geneva Convention in so far as they reflect 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 that it existed
independently of the Convention. Therefore, they argued, Germany is bound by the subject
matter of Article 6 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; and (2) its status after the Convention came into force.

(a) What was the customary law status of Article 6 at the time of drafting the Convention?

8. The Court held that 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, the International Law Commission, on the inclusion of Article 6 into the Convention
and (2) the fact that reservations to Article 6 was permissible under the Convention. 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)

(b) 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 so as to fulfil the criteria specified
below), or because of subsequent State practice (i.e. even if an 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 relating
to international humanitarian law in terms of the latters 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 (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

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 or widespread.

Duration

12. 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

13. 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. (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 that 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 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).

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.