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Back ground of the Case:

North Sea Continental Shelf Cases

Denmark and the Netherlands had convex


coastlines (look at a map (^^)). This meant that
based on the equidistance principle, they
would get less seabed than they would get if
the coastlines were all straight.
They went to the International Court of Justice
and asked for a ruling on how to draw the
boundary.
Denmark and the Netherlands argued that the
equidistance principle was not only codified in
the Convention of the Continental Shelf, but
that it was already 'crystallized' into customary
international law.
The ICJ found that the boundary should be
redrawn on the basis of equitable principles.
The ICJ agreed that the equidistance principle
gives a country with a convex coastline more
seabed than what a country with a concave
coastline would receive.

(Federal Republic of Germany/Denmark and


Netherlands)
1969 I.C.J. 3 (Feb 20)
Article 6 of the Convention on the Continental
Shelf (516 U.S.T.S. 205 (1958)) says that if
there are two countries separated by a sea, the
boundary between then should be calculated
as the point equidistant from both coastlines.
This is known as the equidistance principle.
It is important to know where the boundary is
because a country can drill for oil in the seabed
within their territory.
The North Sea is surrounded by Norway, the
UK, the Netherlands, Germany, Belgium, and
Denmark. There is lots of oil right near the
middle.
Germany felt that they were getting a bad deal
because their coastline was concave, while

The ICJ found that the equidistance principle


was still relatively new, and so it wasn't exactly
customary international law just yet.
In addition, there is a clause in Article 6 that
allows for different boundary lines to be drawn
when "justified by special circumstances."
The ICJ told the parties to go back and work
out a boundary that was equitable to
everybody.
Basically, this case said that countries didn't
need to follow the equidistance principle if it
was inequitable.
Later, this theory of equity was codified in
Article 83 of the Convention on the Law of the
Sea (1833 U.N.T.S. 3 (1982)),

The North Sea Continental Shelf cases were a


series of disputes that came to the

International Court of Justice in 1969. They


involved
agreements
among
Denmark,
Germany, and the Netherlands regarding the
"delimitation" of areasrich in oil and gasof
the continental shelf in the North Sea.
History of the Case: from Wikipedia nix a (^^)
so u may skip reading optional lang

Germany's North Sea coast is concave, while


the Netherlands' and Denmark's coasts are
convex. If the delimitation had been
determined by the equidistance rule ("drawing
a line each point of which is equally distant
from each shore"), Germany would have
received a smaller portion of the resource-rich
shelf relative to the two other states. Thus
Germany argued that the actual length of the
coastlines be used to determine the
delimitation.[1]
The Court ultimately urged the parties to
"abat[e] the effects of an incidential special
feature [Germany's concave coast] from which
an unjustifiable difference of treatment could
result." In subsequent negotiations, the states
granted to Germany most of the additional
shelf it sought.[2] The cases are viewed as an
example of "equity praeter legem"--that is,
equity "beyond the law"--when a judge
supplements the law with equitable rules
necessary to decide the case at hand.[3]

From Dictionary.com are the following


definitions:
concave [adj., v. kon-keyv, kon-keyv; n. konkeyv] adjective, noun, verb, -caved, -caving.
adjective
1.curved like a segment of the interior of a
circle or hollow sphere; hollow and curved.
Compare convex (def. 1).

2.Geometry. (of a polygon) having at least one


interior angle greater than 180.
3.Obsolete. hollow.
convex [adj. kon-veks, kuhn-; n. kon-veks]
Show IPA
adjective
1.having a surface that is curved or rounded
outward. Compare concave ( def. 1 ) .
2.Mathematics .
a.(of a polygon) having all interior angles less
than or equal to 180.

Lecture:
The Court is not asked actually to delimit the further boundaries which will be involved, this task being
reserved by the special agreement to the parties, which undertake to effect such a delimitation by
agreement in pursuance of the decision requested from the Court
That is to say on the basis of and in accordance with, the principle and rules of international law found
by the Court to be applicable.
Equidistance line: May be described as one which leaves to each of the parties concerned all those
portions of the continental shelf that are nearer to a point on its own coast than they are to any point
on the coast of another1
Decision of the ICJ:
The Court does not feel able to accept the contentions put forward on behalf of the Federal Republic.
It considers that having regard both to the languag North Sea Continental Case, ICJ 1969,
paragraph 6e of the special agreements and to more general considerations of law relating to the
regime of the continental shelf its task in the present proceedings relates essentially to the delimitation
and not the apportionment of the areas concerned.2
Delimitation is a process which involves establishing the boundaries of an already, in principle,
appertaining to the coastal state and not determination de novo of such an area
Delimitation in an equitable manner is one thing, but not the same thing as awarding a just and
equitable share of a previously undelimited area, even though in a number of cases the result maybe
comparable even identitical.
Sir Highlighted on this part:
Issue:
The Court will now turn to the contentions of Denmark and Netherlands, Whether in any delimitation
of these areas the Federal Republic is under legal obligation to accept the application of the
equidistance principle 3
1

North Sea Continental Case, ICJ 1969, paragraph 6

North Sea Continental Case, ICJ 1969, paragraph 18

North Sea Continental Case, ICJ 1969, paragraph 21

Answer ( ICJ 1969 Ruling ):


Clearly if this is so then the provisions of the Convention will prevail in the relations between parties,
and would take precedence of any rules having more general character, derived from another source (
Sir Said this is a mere Obiter Dictum)4
Thus the Court said:
In light of these various considerations, the court reads the conclusion that the Geneva Convention
did not embody or crystallize any pre-existing or emergent rule of customary law, according to which
the delimitation of continental shelf areas between adjacent states must, unless the parties otherwise
agree be carried on a equidistance special circumstances basis.5
NORM CREATING:
In so far as this contention is based on the view that Article 6 of the convention has had the influence,
and has produced the effect, described it clearly involves treating that article norm creating This is
not supported by the ICJ , Sir Ligutan discussed on 3 separate points, based on paragraph 72 of the
case.
Points that show Doubts on the contention that the Equidistant principle is norm creating:6
1. Article 6 is so framed as to put second the obligation to make use of equidistance method
causing it to come after a primary obligation to effect delimitation by agreement.
2. The part played by the notion of special circumstances.
3. Finally the faculty of making reservations to article 6.
Class if it were norm creating , then these 3 points would not exist, it would not be subject to the
agreement of the parties, it would not be subject to reservations.
Points that show Doubts on the
contention that the Equidistant principle
is norm creating.

Fr. Bernas cited the North Sea Case, in chapter 3 of his book:
Start here:
However, the Court indicated that a short duration, by itself, will not exclude the possibility of a
practice maturing into custom provided that other conditions are satisfied:
4

North Sea Continental Case, ICJ 1969, paragraph 21

North Sea Continental Case, ICJ 1969, paragraph 69

North Sea Continental Case, ICJ 1969, paragraph 72

Although the passage of only a short period of time is not necessarily, or of itself, a bar ot the
formation of a new rule of customary international law on the basis of what was purely a 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 to show a general recognition that a rule o flaw or legal obligation is involved.7
Sir said this is often asked during
the BAR exams:
What are the elements of
Customary Law?
Answer:
1. General State Practice
2. Opinio Juris Sive Necessitatis
General State practice must be:
State practice , including that of
States whose interests are specially
affected, should have been both.
(par. 74)
1. Extensive
2. Virtually Uniformed
As to State practice Professor Greenwood on his article Introduction to International Law purports :

In reality the fact of a large number of States agreeing upon a treaty provision is itself
an important piece of State practice. If those and other States subsequently apply
the treaty provision especially where they are not parties to the treaty then it can
quickly become part of customary international law. 8
And that:

This consideration has led some writers to distinguish between traits contrats
(contractual treaties) which are only agreements between the parties and traits lois
(law-making treaties). In my view this confuses rather than assists. All treaties are

North Sea Continental Case, ICJ 1969, paragraph 74

Christopher Greenwood. Sources of International Law: An Introduction.

contractual as between their parties. But some also have an effect on the general
law.9
Sir said 39 out of 130 ratified , thus ICJ finds this insufficient. (kindly check this part classmates I cant
find the paragraph)
Discussion on Opinio Juris Sive Necessitatis:
The essential point in this connection- xxx yeo conditions must be fulfilled: Not only must the acts
concerned amount to a settled practice , but hey 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 existence of a rule of law
requiring it. they must feel that they are conforming 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
traditions, and not by any sense of legal duty.10

This humble writer would like to cite Professor Green woods critique on the second element of
International Customary Law Opinio Juris Sive Necessitatis:

Regarding opinio juris, the normal definition of a belief in obligation (see, e.g., the North Sea Continental Shelf cases (1969)
above) is not entirely satisfactory. First, it ignores the fact that many rules are permissive (eg regarding sovereignty over the
continental shelf), for which the real opinio juris is a belief not in obligation but in right. Secondly, and more fundamentally,
there is something artificial in talking of the beliefs of a State. It might be better to consider opinio juris as the assertion of a
legal right or the acknowledgment of a legal obligation.
Once there is sufficient practice together with opinio juris, a new rule of custom will emerge. Subject only to what is known
as the persistent objector principle the new rule binds all States. The persistent objector principle allows a State which has
persistently rejected a new rule even before it emerged as such to avoid its application.11

Highlight:
There is no evidence that they States so acted because they legally compelled to draw them in this
way by reason of a rule of customary law obliging them to do so (especially when they have might
been obligated by other factors such as courtesy, convenience and etc)12
9

supra

10

North Sea Continental Case, ICJ 1969, paragraph 77

11

Christopher Greenwood Sources of International Law: An Introduction

12

North Sea Continental Case, ICJ 1969, paragraph 78

Sir asked the definition of lex


lata and lex ferenda
and lex ferenda .13

4`

Sir said:
Lex lata means: Law as it is
Lex Ferenda means : Law as it ought to be, or should be

Lastly Sir mentioned a briefly estoppels:


Was there Estoppel here?
ICJ said no, because the other states must have change their course of conduct or suffered some
prejudiced.

13

North Sea Continental Case, ICJ 1969, paragraph 62