NORTHSEA CONTINENTAL SHELF CASES (Case Digest)

Brief Fact Summary. The view that customary rules of international law
determined the boundaries of areas located on the continental shelf between
their countries and the Federal Republic of Germany (D) was contended by
Denmark (P) and the Netherlands (P).
Synopsis of Rule of Law. For a custom to become binding as international
law, it must amount to a settled practice and must be rendered obligatory by
a rule requiring it.

Facts. That the boundaries between their respective areas of the continental
shelf in the North Sea and the area claimed by the Federal Republic of
Germany (D), should be determined by the application of the principle of
equidistance as set forth in Article 6 of the Geneva Convention of 1958 on
the Continental Shelf, which by January 1, 1969 had been ratified or acceded
to by 39 states but to which Germany was not a party, was the basis of
Denmarks (D) and the Netherlands (P) contention.
Because the use of the delimitation method was not merely a conventional
obligation, but a rule that was part of the corpus of general international law
and like other rules of general or customary international law, which was
binding automatically on Germany (D), independent of any specific assent,
direct or indirect, given by Germany (D), Denmark (P) and the Netherlands
(P) contended that Germany (D) was bound to accept the delimitation on an
equidistance basis.

Issue. Must delimitation be the object of an equitable agreement between

the states involved?

Held. Yes. Delimitation must be the object of an equitable agreement

between the states involved. As stipulated in Article 6 of the Geneva
Convention, equidistance principle is not part of customary international law.
Article 6 makes the obligation to use the equidistance method a secondary
one which comes into play only when agreements between the parties are
absent. Although the principle of equidistance is not given a fundamental

norm-creating character by Article 6, which is necessary to the formation of a

general rule of law.
In this case, after taking into consideration all relevant circumstances, the
delimitation here is to be excused by equitable agreement.

Dissent. (Lachs, J.) not only the states who are parties to the Convention on
the Continental Shelf have accepted the principles and rules enshrined in the
Convention including the equidistance rule, but by other states who that
have subsequently followed it in agreements, or in their legislation, or have
acquiesced in it when faced with legislative acts of other affecting them. This
can be seen as evidence of a practice widespread enough to satisfy the
criteria for a general rule of law.
Discussion. The concept of opinion juris analyzed by the dissent is in
consonance with the position taken by some legal scholars who maintain
that opinio juris may be presumed from uniformities of practice regarding
matters viewed normally as involving legal rights and obligations. A contrary
position maintains that the practice of states must be accompanied by or
consist of statements that something is law before it can become law