NORTH SEA CONTINENTAL SHELF CASES (SUMMARY)
Name of the Case: The North Sea Continental Shelf Cases (Germany/Denmark; Germany/Netherlands); Year of Decision: 1969; and Court: ICJ.
NB: This post discussed only aspects of the case related to treaty or customary international law.
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 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.
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 wished 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.
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, 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 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?