NORTH SEA CONTINENTAL SHELF CASES

(Federal Republic of Germany v. Denmark;

Federal Republic of Germany v. Netherlands)
International Court of Justice
1969 I.C.J. 3

Questions before the Court (as relevant to this post):

Is Germany under a legal obligation to
equidistance-special circumstances principle,
Article 6 of the Geneva Convention, either as
international law rule or on the basis of
Convention?

accept the
contained in
a customary
the Geneva

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 Courts Decision:

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.

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:

FACTS:
Denmark, the Netherlands, and Germany all had a dispute
over the boundaries of a shared continental shelf. Denmark
and the Netherlands both argued that the dispute should be
resolved according to principles of Article 6 of the Geneva
Convention of 1958 on the Continental Shelf, which provided
that in the absence of agreement or special circumstances, a
boundary line should be determined by application of the
principle of equidistance. Germany was not a party to this
Convention, but Denmark and the Netherlands argued that
the principle of equidistance still applied because it was part
of general international law, and particularly customary
international law.

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) 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 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.