C2021 - Judgement was 11 votes to 6 regarding the delimitation of the continental shelf

between the Federal Republic of Germany and Denmark vs the Federal

<North Sea Continental Shelf Cases (Germany v Denmark, Germany v Republic of Germany and the Netherlands
Netherlands) (ICJ, 1969)> - Denmark and Netherlands’ Contention (which was rejected by the court):
Ponente: I.C.J. Reports 1969, p.3 delimitations had to be carried out in accordance with the principle of
equidistance defined by (Art 6, 1958 Geneva Convention on the Continental
<02/20/1969>
shelf)
Digester: de los Reyes
 “the Federal Republic, which had not ratified the
Convention, was not legally bound by the provisions of
SUMMARY: The case involved the delimitation of the Article 6”
continental shelf areas in the North Sea between Germany  “the equidistance principle was not a necessary
and Denmark and Germany and Netherlands beyond the consequence of the general concept of continental shelf
partial boundaries previously agreed upon by these States. rights and was not a rule of customary international law.”
Parties requested the Court to decide the principles and rules o Effect of Rule: in absence of agreement by parties to employ another
of international law that are applicable to the above method, all continental shelf boundaries had to be drawn by means
delimitation because the parties disagreed on the applicable of an equidistance line unless “special circumstances” were
principles or rules of delimitation. Netherlands and Denmark recognized to exist
relied on the principle of equidistance (the method of  Equidistance Principle: left to each of the Parties concerned all those
determining the boundaries in such a way that every point in portions of the continental shelf that were nearer to a point on its
the boundary is equidistant from the nearest points of the own coast than they were to the coast of the other party
baselines from which the breath of the territorial sea of each o FR on North Sea had a concave/ recessing coast = pulled
State is measured). Germany sought to get a decision in the lines of the boundary inward, in the direction of the
favour of the notion that the delimitation of the relevant concavity
continental shelf was governed by the principle that each  Would cut off the coastal state from the area of
coastal state is entitled to a just and equitable share the continental shelf outside
(hereinafter called just and equitable principle/method). o Denmark and Netherlands had a convex or outwardly
Contrary to Denmark and Netherlands, Germany argued that curving coast caused equidistance lines to leave coasts on
the principle of equidistance was neither a mandatory rule in divergent courses = widening tendency on area of shelf off
delimitation of the continental shelf nor a rule of customary that coast
international law that was binding on Germany. The Court - Federal Republic’s Contention (rejected): principle of an apportionment of the
was not asked to delimit because the parties had already continental shelf into just and equitable shares
agreed to delimit the continental shelf as between their o considered that it would unduly curtail what the Federal Republic
countries, by agreement, after the determination of the Court believed should be its proper share of continental shelf area, on the
on the applicable principles. basis of proportionality to the length of its North Sea coastline
 each of the States concerned was entitled to a continental
DOCTRINE: Jurisprudence of North Sea Continental Shelf shelf area extending up to the central point of that sea, or at
Cases sets out the dual requirement for the formation of least extending to its median line
customary international law: o claimed that the configuration of the German North Sea constituted
(1) State practice (the objective element) a special circumstance such as to justify a departure from that
- Criteria: widespread and representative method of delimitation
participation - Held: each party had an original right to those areas of the continental shelf
- practices of those States whose interests were which constituted the natural prolongation of its land territory into and under
specially affected by the custom were especially the sea. Not a question of apportioning or sharing but of delimiting them.
relevant in the formation of customary law. - Court Findings: boundary lines in question were to be drawn by agreement in
(2) opinio juris (the subjective element). accordance with equitable principles between parties
- Criteria: uniform and consistent practice was o Parties must negotiate on basis of such principles
necessary o Apportionment Theory was rejected. Court’s task was to delimit and
- opinio juris is the belief that State practice amounts not apportion areas.
to a legal obligation. o Art 6 of 1958 Geneva Convention not applicable. Under the formal
provisions of the Convention, it was in force for any individual State
FACTS that had signed it within the time-limit provided, only if that State had
also subsequently ratified it.
  Denmark and Netherlands both signed and ratified but FR, 1. General configuration of coasts of parties
although signatories, never ratified it = not a party 2. Presence of any special or unusual features, so far as known or readily
 Art 6 was not applicable to delimitations involved in the ascertainable
proceedings 3. Physical and geological structure and natural resources of the continental
o Equidistance Principle not inherent in basic doctrine of Continental shelf areas involved
shelf and not a rule of customary international law. 4. Element of a reasonable degree of proportionality between extent of the
 Court considered the principle of equidistance had not been continental shelf areas appertaining to each state
proposed by the International Law Commission as an 5. Length of coast measured in general direction of coastline
emerging rule of customary international law.
 Confirmed by the fact that any State might make PROCEDURE
reservations on Art 6, unlike other articles on - Proceedings were instituted on Feb 20, 1967 by the communication to the
signing, ratifying, or acceding to the convention. Registry of the Court of two Special Agreements, between Denmark and the
 Art 6, however, related directly to continental shelf Federal Republic and the Federal Republic and the Netherlands respectively
rights as such, and since it was not excluded from - Court joined the proceedings in two cases by an Order of April 26, 1968
the faculty of reservation, it was a legitimate - Decided in a single judgement (11 votes to 6)
inference that it was not considered to reflect
emergent customary law. ISSUE/S
 As regards the time element, although the Is Germany under a legal obligation to accept the equidistance-special circumstances
passage of only a short period of time was not principle, contained in Article 6 of the Geneva Convention on the Continental Shelf of
necessarily a bar to the formation of a new rule of 1958, either as a customary international law rule or on the basis of the Geneva
customary international law on the basis of what Convention?
was originally a purely conventional rule, it was
indispensable that State practice during that RULING:
period, including that of States whose interests The use of the equidistance method had not crystallised into customary law and the
were specially affected, should have been both method was not obligatory for the delimitation of the areas in the North Sea related to
extensive and virtually uniform in the sense of the the present proceedings.
provision invoked and should have occurred in
such a way as to show a general recognition that RATIO:
a rule of law was involved 1. Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular
- Conclusion of Court: Geneva Convention was not in its origins or inception Article 6, binding on Germany?
declaratory of a mandatory rule of customary international law enjoining the
use of the equidistance principle, its subsequent effect had not been 1. Article 6 of the Geneva Convention stated that unless the parties had already agreed
constitutive of such a rule, and State practice up to date had equally been on a method for delimitation or unless special circumstances exist, the equidistance
insufficient for the purpose. method would apply. Germany had signed, but not ratified, the Geneva Convention,
o Principles and Rules of Law Applicable while Netherlands and Denmark were parties to the Convention. The latter two States
 Basic Principles in the matter of delimitation, derived from argued that while Germany is not a party to the Convention (not having ratified it), she
Truman Proclamation: must be the object of agreement was still bound by Article 6 of the Convention because:
between the States concerned and that such agreement
must be arrived at in accordance with equitable principles “…(1) by conduct, by public statements and proclamations, and in other ways, the
 Parties were under an obligation to enter into Republic has unilaterally assumed the obligations of the Convention; or has manifested
negotiations with a view to arriving at an its acceptance of the conventional regime; or has recognized it as being generally
agreement and not merely to go through a formal applicable to the delimitation of continental shelf areas…
process of negotiation as a sort of prior condition
for the automatic application of a certain method (2) the Federal Republic had held itself out as so assuming, accepting or recognizing,
of delimitation in the absence of agreement; they in such a manner as to cause other States, and in particular Denmark and the
were so to conduct themselves that the Netherlands, to rely on the attitude thus taken up” (the latter is called the principle of
negotiations were meaningful, which would not be estoppel).
the case when one of them insisted upon its own
position without contemplating any modification of 2. The Court rejected the first argument. It said that only a ‘very definite very consistent
it course of conduct on the part of a State would allow the Court to presume that the State
Factors to be taken into account during negotiations: 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 “… Article 6 is one of those in respect of which, under the reservations article of the
unilaterally assumed obligations under the Convention. The court also took notice of Convention (Article 12) reservations may be made by any State on signing, ratifying or
the fact that even if Germany ratified the treaty, she had the option of entering into a acceding, – for speaking generally, it is a characteristic of purely conventional rules and
reservation on Article 6, following which that particular article would no longer be obligations that, in regard to them, some faculty of making unilateral reservations may,
applicable to Germany (in other words, even if one were to assume that Germany had within certain limits, be admitted; whereas this cannot be so in the case of general or
intended to become a party to the Convention, it does not presuppose that it would customary law rules and obligations which, by their very nature, must have equal force
have also undertaken those obligations contained in Article 6). 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….
3. Note: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came The normal inference would therefore be that any articles that do not figure among
into force in 1980, discusses in more detail treaty obligations of third States (those those excluded from the faculty of reservation under Article 12, were not regarded as
States who are not parties to the treaty). It clearly stipulates that obligations arise for declaratory of previously existing or emergent rules of law …” (see para 65 for a counter
third States from a provision of a treaty only if (1) the actual parties to the treaty intended argument and the Court’s careful differentiation)
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 (b) Did the provisions in Article 6 on the equidistance principle attain the customary law
the Court deliberated on this case. However, as seen above, the Court’s position is status after the Convention came into force?
consistent the VCLT. (See the relevant provisions of the Vienna Convention on the Law
of Treaties). 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
4. The Court held that the existence of a situation of estoppel would have allowed Article Convention itself (i.e., if enough States had ratified the Convention in a manner so as
6 to become binding on Germany – but held that Germany’s action did not support an to fulfil the criteria specified below), or because of subsequent State practice (i.e. even
argument for estoppel. The Court also held that the mere fact that Germany may not if an adequate number of States had not ratified the Convention, one could find
have specifically objected to the equidistance principle as contained in Article 6, is not sufficient State practice to meet the criteria below). The Court held that Article 6 of the
sufficient to state that the principle is now binding upon it. Convention had not attained a customary law status. (Compare the 1958 Geneva
Convention with the four Geneva Conventions on 1949 relating to international
5. In conclusion, the Court held that Germany had not acted in any manner so as to humanitarian law in terms of the latter’s authority as a pronouncement of customary
incur obligations contained in Article 6 of the Geneva Convention. The equidistance– international law).
special circumstances rule was not binding on Germany by way of treaty law.
10. For a customary rule to emerge the Court held that it needed: (1) very widespread
2. Nature of the customary international law obligation: Is Germany bound by the and representative participation in the Convention, including States whose interests
provisions of Article 6 of the Geneva Convention in so far as they reflect customary were specially affected (in this case, they were coastal States) (i.e. generality); and (2)
international law? 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.
6. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted rule of opinio juries). In the North Sea Continental Shelf cases the court held that the passage
general international law on the subject of continental shelf delimitation’ and that it of a considerable period of time was unnecessary (i.e. duration) for the formation of a
existed independently of the Convention. Therefore, they argued, Germany is bound customary law.
by the subject matter of Article 6 by way of customary international law.
Widespread and representative participation
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 11. The Court held that the first criteria was not met. The number of ratifications and
6 as it stood when the Convention was being drawn up; and (2) its status after the accessions to the Convention (39 States) were not adequately representative or
Convention came into force. widespread.

(a) What was the customary law status of Article 6 at the time of drafting the Duration
Convention?
12. The Court held that the duration taken for a customary law rule to emerge is not as
8. The Court held that the principle of equidistance, as contained in Article 6 did not important as widespread and representative participation, uniform usage, and the
form a part of existing or emerging customary international law at the time of drafting existence of an opinio juris. It held that:
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 “Although the passage of only a short period of time (in this case, 3 – 5 years) is not
of Article 6 into the Convention and (2) the fact that reservations to Article 6 was necessarily, or of itself, a bar to the formation of a new rule of customary international
permissible under the Convention. The Court held: 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.