North Sea Continental Shelf Cases (1969)

Paridhi Dave | Institute of Law, Nirma University | 16th April 2020

Federal Republic of Germany / Denmark Clubbed With Federal Republic of Germany / Netherlands

FACTS OF THE CASE

The present case covers claims of three parties with regard to a Continental Shelf in North Sea, wherein both Denmark and Netherlands submitted individual disputes with Germany to the International Court of Justice. This was done via two Special Agreements to decide the applicable principles and rules of international law. The ICJ clubbed both the claims and gave a single judgment.

The problem pertains to the geographical location of these three countries. The boundary of the Federal Republic is concave in nature as opposed to the convex boundaries of Denmark and Netherlands. Denmark and Netherlands contended that the equidistance method should be followed, which is also provided in the Geneva Convention on Continental Shelf. They argued that this equidistance principle was a rule of customary international law, an a priori rule and a general rule of conventional practicality.

The Federal Republic of Germany denied its obligatory character as it was only a signatory to the Geneva Convention and had not ratified it. It claimed that the equidistance method was unfair to it, since it had a concave coastline and this method would lead to it having lesser area in the Continental Shelf. The Federal Republic further argued for apportionment of the shelf in proportion of its coastline or sea-frontage.

The bone of contention in this case was about delimitation of the Shelf in a manner which would give a ‘just and equitable share’ to all three parties. The parties were eventually in consonance that the Court was not to physically apportion the claims, but merely prescribe a suitable method of delimitation which could be followed

ISSUES

1. Whether the Geneva Convention of 1958, on the Continental Shelf and particularly Article 6 is binding for Germany?
2. Whether the equidistance principle had become a rule of Customary International Law since the adoption of the Continental Shelf Convention and is Germany bound by it?

RULE

1. Article 6 (2) of the Geneva Convention on the Continental Shelf, 1958.

Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.

ANALYSIS / APPLICATION

The present case deals with significant arguments in the sphere of International Law.

• The Federal republic of Germany had signed the Convention of 1958 but it had not ratified it. The Netherlands and Denmark contended that Germany had unilaterally assumed the obligations arising out of the Convention or had perhaps manifested its acceptance of the provisions of the same, with respect to the shelf delimitation provisions.
• This argument was rejected by the Court. The Court emphasized the existence of situation of estoppel which could preclude Germany from denying the applicability of the conventional regime which caused Denmark or the Netherlands to detrimentally change their position or suffer some prejudice. However, there is no such evidence in this case.
• The Court concluded that Article 6(2) was not a ‘norm-creating’ provision. The possibility of reservations, emphasis on agreement as the primary means of delimitation and the ‘special circumstances’ provision made the Court unable to declare that it was such a rule.[1] The Court held that merely raising no objection to the equidistance principle as under Article 6, is not a sufficient reason to state that the principle is binding on Germany. In a nutshell, the equidistance-special circumstance rule was not binding on Germany by virtue of treaty law.

• The Netherlands and Denmark then argued under Article 6 that Germany was bound by it by way of customary international law since the Article existed independently of the Convention.
• The Court rejected this argument, and clarified that the principle of equidistance under Article 6 did not form a part of existing or emerging customary law when the Convention was drafted. The Article did not attain the status of customary international law even subsequent to the Convention coming into force.
• The Court emphasized upon the aspects of generality and uniform practice in consonance with opinio juris for the emergence of a customary law. Hence, the Federal Republic was not bound by the equidistance principle either by treaty law or by customary law.
• The Court formulated three working rules, wherein it derived the existence of the first rule from the Special Agreements arising out of the Truman Proclamation, 1945. The Court concluded that whatever method of delimitation was applied, the results should be equitable.

CONCLUSION

• Judgment

Bench

President Bustamante Y Rivero; Vice President Koretksy; Judges Sir Geral Fitzmaurice, Tanaka, Jessup, Morelli, Sir Muhammad Zafrulla Khan, Padilla Nervo, Forster, Gros, Ammoun, Bengzon, Petren, Lachs, Onyema; Judges Ad Hoc Mosler, Sorensen; Registrar Aquarone.

Ratio Decedendi

The Court on 20^th February, 1969 by eleven votes to six delivered its judgment.[2] This was the thirtieth judgment of the ICJ since its inception in 1945.

The Court came to the conclusion that, the use of equidistance method of delimitation did not impose an obligatory nature on the parties by way of either treaty law or customary practices. It held that the delimitation has to be effected by agreement in accordance with the equitable principles and after taking into consideration all relevant circumstances. It further laid down the intricacies which had to be followed while formulating the agreement and carrying out the distribution of the Shelf among the three parties.

• Analysis

The case primarily dispelled the myth that the duration of state practice formed an essential factor in forming customary international law.[3] It then went on to explain what constitutes as an essential element in the formation of customary international law.

This case confirmed the essential twin elements of customary international law.

• State Practice
• Opinio juris – derived from the maxim ‘opinion juris sive necessitatis’. 

Through this case, the importance of the subjective element of ‘opinio juris’ can be derived. Even though the Court examined 15 cases where States had delimited their boundaries using the equidistance method (subsequent to the enforcement of the Convention); the Court concluded that in spite of existence of State Practice, the necessary opinio juris could not be deduced. Moreover, among the fifteen cases that have been cited, most of the delimitations concerned were median-line delimitations between geographically opposite States, not lateral delimitations between adjacent States, such as in the present case.

Opinio juris is reflected through two ways:

• Acts                                                     (Explained in: Nicaragua Case)
• Omissions                                            (Explained in: S.S. Lotus Case)

However, these acts/omissions should provide evidence of the belief that there is a legal obligation on the State to do so. In customary international law, opinio juris forms an essential element which is required to establish a legally binding custom. It constitutes more of a psychological feeling / obligation on the State to follow a certain practice. It is an unsettled and debated notion in international law. It leads to the conclusion that the recognition of custom under traditional international law may be a result of self-interested behaviour of the state and that the changes in CIL are very malleable and fluid in their orientation.

The judgment is of significance to every State which shares a continental shelf with an adjacent State where one or both of the States are not parties to the 1958 Convention.

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[1] Geoffrey Marston, North Sea Continental Shelf Cases, Federal Law Review, Vol. 3 at 283, 283-292.

[2] North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 3.

[3] Ruwanthika Gunaratne, North Sea Continental Shelf Cases (Summary), PUBLIC INTERNATIONAL LAW, https://ruwanthikagunaratne.wordpress.com/2014/02/28/north-sea-continental-shelf-cases-summary/.