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:
“…(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 ICJ’s 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 Germany’s 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.