North Sea Continental Shelf Cases

(Federal Republic of Germany v Denmark)

(Federal Republic of Germany v Netherlands)

Facts:

The case is about the delimitation of the continental shelf between Germany and Denmark, and
between Germany and Netherlands. (The determination of a State’s continental shelf,
particularly in adjacent coastal States, is important in ascertaining jurisdiction over the waters
that is “bordering” them in common) If you look at the map of this region, Germany’s coastline
on the north (that which faces the North Sea) is going inwards the mainland (basically it’s a
concave figure). Netherlands is on one side of Germany, while Denmark is on the other. It is
also noticeable that the coastlines of Denmark and Netherlands (the ones facing the North Sea)
are outwardly curving. The case was submitted to the ICJ to determine the principles or rules of
international law, applicable, in carrying out the delimitation of the continental shelf. Netherlands
and Denmark argue that the “equidistance principle” in Article 6 of the Geneva Convention is
applicable. Such principle essentially entails that your country’s continental shelf will be drawn
up to a certain distance from your shorelines--following the contours and indentations.
Clearly the equidistance principle is to the disadvantage of Germany—it having an inward
shoreline. If said principle is to be applied to Germany, then it would necessarily lose jurisdiction
over certain portions of the North Sea. While Denmark and Netherlands would benefit from a
widening tendency on the area of continental shelf off that coast. Germany contends that all the
parties should be given a “just and equitable share” in proportion to the length of its sea-
frontage (essentially following the area facing the North sea without regard to inward or outward
indentations). In addition, Germany prays that the States involved be entitled to a continental
shelf area up to a central point as its median line. Netherlands and Denmark argue that
Germany is bound by Art 6 of the Geneva Convention, despite the latter’s non-ratification of said
treaty, because that provision has formed part of international custom and can even be
considered to be a general principle of law. Germany argues otherwise. Moreover, it argues that
even if the provision has gained the status of custom, the configuration of Germany’s coast
constituted a special circumstance (this is similarly provided in the provision) which would justify
a departure from the equidistance principle.

Issue:

How should the delimitation of the North Sea continental shelf be carried out?

Held:

It should be carried out by agreement between the States taking into account
geographical equitable considerations including general and special features of the coasts. The
Court decided the case based on equity considerations. Since neither treaty nor custom is
governing, the Court tried to reach an equitable conclusion.

(On apportioning the continental shelf area into just and equitable shares)

The Court is not tasked to apportion the areas concerned, but merely to delimit it. The
continental shelf is a natural prolongation of a State’s land territory. Since a State has
sovereignty over its land territory, it naturally has a right over the prolongation of its land—i.e.
the continental shelf. For the court to apportion the areas is inconsistent with the basic concept
of continental shelf entitlement.

(On the argument of custom)

Article 6 of the Geneva Convention does not embody an existing customary norm. The
provision cannot be said to have crystallized into a rule of customary international law for
several reasons: First, Article 6 was framed to be purely contractual (Suffice it to state that the
Convention was not a treaty of codification but purely de lege ferenda [creating new rules
between the contracting States]); Second, the number of ratifications and accessions to the
treaty was hardly sufficient to constitute a general rule of international
law; Third, state practice was neither extensive enough nor virtually uniform to show a general
recognition of an evolving norm; And fourth, the treaty itself allows for reservations (in effect,
contracting States may practice or not practice the equidistance principle)

(On the argument of treaty)

Germany was not legally bound by Article 6. Though it signed the Geneva Convention, it
has not ratified said treaty.

Why is this case important on the topic of territory of States?

The case illustrates a mode of settling disputes on overlapping maritime areas. It has
been observed that International courts and arbitration bodies have applied equitable principles
instead of traditional median line or middle lines. UNCLOS III has also recognized such manner
of settling overlapping maritime areas.