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 court’s 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.