NORTH SEA CONTINENTAL SHELF CASES

(Federal Republic of Germany v. Denmark;
Federal Republic of Germany v. Netherlands)
International Court of Justice
1969 I.C.J. 3

Questions before the Court (as relevant to this post):
Is Germany under a legal obligation to
equidistance-special circumstances principle,
Article 6 of the Geneva Convention, either as
international law rule or on the basis of
Convention?

accept the
contained in
a customary
the Geneva

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 Court’s Decision:

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.

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:

FACTS:
Denmark, the Netherlands, and Germany all had a dispute
over the boundaries of a shared continental shelf. Denmark
and the Netherlands both argued that the dispute should be
resolved according to principles of Article 6 of the Geneva
Convention of 1958 on the Continental Shelf, which provided
that in the absence of agreement or special circumstances, a
boundary line should be determined by application of the
“principle of equidistance.” Germany was not a party to this
Convention, but Denmark and the Netherlands argued that
the principle of equidistance still applied because it was part
of general international law, and particularly customary
international law.

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?

“…(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

1

10. an indispensable requirement would be that within the period in question.” Opinio juris 2 . within certain limits. The court held that the first criteria was not met. short though it might be. generality). To decide if the equidistance principle bound Germany by way of customary international law. The VCLT was not in force when the ICJ deliberated on this case. under the reservations article of the Convention (Article 12) reservations may be made by any State on signing. 4. including that of States whose interests are specially affected. ratifying or acceding for. Germany is bound by it by way of customary international law. 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. Therefore.. a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule. In conclusion. speaking generally. even if adequate number of States had not ratified the Convention one could find sufficient State practice to meet the criteria below). uniform usage and the existence of an opinio juris. For a customary rule to emerge the court held that it needed: (1) very widespread and representative participation in the convention. What was the customary law status of Article 6 at the time of drafting the Convention? 8. 35 of the VCLT). if enough States had ratified the Convention in a manner to fulfil the criteria specified below). as contained in Article 6. as seen above. Widespread and representative participation 11.e. including States whose interests were specially affected (i. consistent and uniform usage) undertaken in a manner that demonstrates (3) a general recognition of the rule of law or legal obligation (i.e. The equidistance – special circumstances rule was not binding on Germany by way of treaty. whereas this cannot be so in the case of general or customary law rules and obligations which. did not form a part of existing or emerging customary international law at the time of drafting the Convention. opinio juries). 5. In the North Sea Continental Shelf cases the court held that the passage of a considerable period of time was unnecessary (i. Duration 12. (See the relevant provisions of the Vienna Convention on the Law of Treaties). The court held the principle of equidistance. 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. “Although the passage of only a short period of time (in this case. those States whose rights are affected) or widespread. The court held: … Article 6 is one of those in respect of which. 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. they argued. 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). and (2) virtually uniform practice (i. 62) and (2) the fact reservations to Article 6 was permissible under the Convention (Article 12). 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. it is a characteristic of purely conventional rules and obligations that. or because of subsequent State practice (i. the ICJ’s position was consistent the VCLT. The court held that duration taken for the customary law rule to emerge is not as important as widespread and representative participation. 7. 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. 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). 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. However. 3 – 5 years) is not necessarily. duration) for the formation of a customary law. and (2) the third State expressly accepts that obligation in writing (A. some faculty of making unilateral reservations may.e.e. 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. The normal inference would therefore be that any articles that do not figure among those excluded from the faculty of reservation under Article 12. by their very nature. State practice.provision of a treaty only if (1) the parties to the treaty intend the provision to create this obligation for the third States. in regard to them. must have equal force for all members of the international community. 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.e. or of itself. The number of ratifications and accessions to the convention (39 States) were not adequately representative (including of coastal States – i.e. be admitted. 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 court held that Germany had not acted in any way to incur obligations contained in Article 6 of the Geneva Convention.

convenience or tradition.. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. in the case of the latter. habits) and customary law: Not only must the acts concerned amount to a settled 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. the existence of a subjective element. as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The court concluded that the equidistance principle was not binding on Germany by way of treaty or customary international law because. in the field of ceremonial and protocol. The frequency. 15. (For more on opinio juris click here). 75 -77). The following explains the concept of opinio juris and the difference between customs (i. or even habitual character of the acts is not in itself enough. This is consistent with Article 38 (1) (b) of the Statute of the ICJ. i. but which are motivated only by considerations of courtesy. The court concluded. is implicit in the very notion of the opinio juris sive necessitatis. the court held that the use of the equidistance method is not obligatory for the delimitation of the areas concerned in the present proceedings. and not by any sense of legal duty. The Court examined 15 cases where States had delimited their boundaries using the equidistance method. which are performed almost invariably. As such.e. 3 . The need for such a belief. the principle had not attained a customary international law status at the time of the entry into force of the Geneva Convention or thereafter. after the Convention came into force (paras.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. but they must also be such.g. There are many international acts. 14. e.e. or be carried out in such a way. 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.