North Sea Continental Shelf Cases (Summary)

February 28, 2014

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 Shelf 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 (define the limits) 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 Court’s 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 Court’s 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
Germany’s 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 equidistance–special 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 Court’s 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 latter’s 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.