Enviromental 142 B IV

NORTH SEA CONTINENTAL SHELF CASE: A CASE STUDY
PROJECT REPORT
ON
“NORTH SEA CONTINENTAL SHELF CASE: A CASE STUDY”
SUBMITTED TO:
MS. VINITA TRIPATHI
FACULTY MEMBER IN INTERNATIONAL LAW
SUBMITTED BY:
Shantanu Vaishnav
B.A.LL.B. (HONS.) STUDENT
SEMESTER- IV, SECTION- B, ROLL NO. – 142.
SUBMITTED ON:
18TH MARCH, 2018.
HIDAYATULLAH NATIONAL LAW UNIVERSITY

UPARWARA, POST- ABHANPUR, NEW RAIPUR- 492002(CHHATTISGARH)
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DECLARATION
I hereby declare that the project work entitled “North Sea Continental shelf case: a case study”
submitted to the Hidayatullah National Law University, Raipur is the original work done by me
under the guidance of Ms. Vinita Tripathi, Hidayatullah National Law University, Raipur and
this project has not performed on the basis for the award of any Degree or diploma and similar
project if any.
Shantanu Vaishnav
Semester – IV
Section – B
Roll No. – 142
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ACKNOWLEDGEMENTS
I, Shantanu Vaishnav, feel myself elated, as it gives me immense pleasure to come with the
work on topic, ““North Sea Continental shelf case: a case study””. Words fail to express my
deep sense of glee to my teacher, Ms. Vinita Tripathi, who enlightened me on my every
difficulty in completion of task. I acknowledge the blessings and support which my mother and
father gave in finishing of this task.
I would like to forward my hearty thanks to my University and Vice-Chancellor for providing
all the necessary requirements which aided me to achieve my goal. I also thank Librarian
HNLU, Raipur, for assisting me and allowing me to use the library of the University.
I feel a deep sense of thankfulness to all my seniors, my friends who helped me in achieving
my target.
Much Obliged,
Shantanu Vaishnav
Semester – IV
Section – B
Roll No. – 142
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TABLE OF CONTENTS
DECLARATION------------------------ II
ACKNOWLEDGEMENTS--------------------------------------------------------------- III
1. Introduction 05
Methodology
06
2. Facts of the case 07
3. Contention of the parties 09
4. Questions before the Court 10
5. Court’s Decision 11
11
5.1 Relevant findings of the Court
6. Legal value 17
7. Conclusion 26
27
8. Bibliography
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CHAPTER- 1
1.1 INTRODUCTION
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 juris1
(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 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
Ian, Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 6th Ed. (New York: Oxford University Press, 2003) p. 8.
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1.2 METHODOLOGY OF STUDY
The study has been carried out with the help non secondary data available in the books and
internet. The information regarding the topic has been taken from the Internet while the basic
views & thoughts of ““North Sea Continental shelf case: A case study”” contain annotations
from books.
This doctoral study has been done taking the help of secondary data i.e. websites, articles. It is
descriptive in nature. To construct this project, the help of dictionaries, legal websites as well as
other websites. The points as discussed in this project include the study of different sources on
the topic as well as the points guided by the faculty.
1.3 OBJECTIVES OF THE STUDY

1) To analyze the North Sea Continental Shelf case.
2) To evaluate the findings of the court in the case.
3) To examine the equidistance principle as was laid down in the North Sea Continental
shelf case.
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CHAPTER- 2
FACTS OF THE CASE
Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle.
An agreement on further prolongation of the boundary proved difficult because Denmark and
Netherlands wished this prolongation to take place based on the equidistance principle where as
Germany was of the view that, together, these two boundaries would produce an inequitable
result for her. Germany stated that due to its concave coastline, such a line would result in her
loosing out on her share of the continental shelf based on proportionality to the length of its
North Sea coastline. The Court had to decide the principles and rules of international law
applicable to this delimitation. In doing so, the court had to decide if the principles espoused by
the parties were binding on the parties either through treaty law or customary international law.
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The two Special Agreements had asked the Court to declare the principles and rules of
international law applicable to the delimitation as between the Parties of the areas of the North
Sea continental shelf appertaining to each of them beyond the partial boundaries in the
immediate vicinity of the coast already determined between the Federal Republic and the
Netherlands by an agreement of 1 December 1964 and between the Federal Republic and
Denmark by an agreement of 9 June 1965.The Court was not asked actually to delimit the further
boundaries involved, the Parties undertaking in their respective Special Agreements to effect
such delimitation by agreement in pursuance of the Court's decision.
The waters of the North Sea were shallow, the whole seabed, except for the Norwegian Trough,
consisting of continental shelf at a depth of less than 200 metres. Most of it had already been
delimited between the coastal States concerned. The Federal Republic and Denmark and the
Netherlands, respectively, had, however, been unable to agree on the prolongation of the partial
boundaries referred to above, mainly because Denmark and the Netherlands had wished this
prolongation to be effected on the basis of the equidistance principle, whereas the Federal
Republic had considered that it would unduly curtail what the Federal Republic believed should
be its proper share of continental shelf area, on the basis of proportionality to the length of its
North Sea coastline. Neither of the boundaries in question would by itself produce this effect, but
only both of them together - an element regarded by Denmark and the Netherlands as irrelevant
to what they viewed as being two separate delimitations, to be carried out without reference to
the other.
A boundary based on the equidistance principle, i.e., an "equidistance line", left to each of the
Parties concerned all those portions of the continental shelf that were nearer to a point on its own
coast than they were to any point on the coast of the other Party. In the case of a concave or
recessing coast such as that of the Federal Republic on the North Sea, the effect of the
equidistance method was to pull the line of the boundary inwards, in the direction of the
concavity. Consequently, where two equidistance lines were drawn, they would, if the curvature
were pronounced, inevitably meet at a relatively short distance from the coast, thus "cutting off"
the coastal State from the area of the continental shelf outside. In contrast, the effect of convex or
outwardly curving coasts, such as were, to a moderate extent, those of Denmark and the
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Netherlands, was to cause the equidistance lines to leave the coasts on divergent courses, thus
having a widening tendency on the area of continental shelf off that coast.
CHAPTER-3
CONTENTION OF THE PARTIES
It had been contended on behalf of Denmark2 and the Netherlands that the whole matter was
governed by a mandatory rule of law which, reflecting the language of Article 6 of the Geneva
Convention on the Continental Shelf of 29 April 1958, was designated by them as the
"equidistance-special circumstances" rule. That rule was to the effect that in the absence of
agreement by the parties to employ another method, all continental shelf boundaries had to be
drawn by means of an equidistance line unless "special circumstances" were recognized to exist.
According to Denmark and the Netherlands, the configuration of the German North Sea coast did
not of itself constitute, for either of the two boundary lines concerned, a special circumstance.
The Federal Republic, for its part, had contended that the correct rule, at any rate in such
circumstances as those of the North Sea, was one according to which each of the States
concerned should have a "just and equitable share" of the available continental shelf, in
proportion to the length of its sea-frontage. It had also contended that in a sea shaped as is the
North Sea, each of the States concerned was entitled to a continental shelf area extending up to
the central point of that sea, or at least extending to its median line. Alternatively, the Federal
Republic had claimed that if the equidistance method were held to be applicable, the
configuration of the German North Sea coast constituted a special circumstance such as to justify
a departure from that method of delimitation in this particular case.
2
1969 North Sea Continental shelf case, pp. 19-21.
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CHAPTER-4
QUESTIONS BEFORE THE COURT
a) The first legal issue whether the basic concept of the Continental Shelf has become a general
norm of international law, binding upon all states either as a custom or as a general principle of
law, and is therefore applicable between states all or some of which are not parties to any treaty
or agreement on the subject. If the Court were to hold this issue in the affirmative, then how are
the boundaries of the continental shelves of opposite or adjacent states to be determined? Should
the criteria be those of Article 6 of the Continental Shelf Convention as representing customs or
general principles of law? In particular, should the equidistance principle be regarded as
generally binding, as was the contention of Denmark and The Netherlands?
b) Secondly; or should, on the contrary, the North Sea Continental Shelf be apportioned among
the participating states according to principles of distributive Justice, giving each state “a fair and
equitable” share of the Shelf. i.e. Delimitation of the continental shelf. This was the contention of
Federal Republic of Germany.
c) In the absence of a legal basis for reapportionment of the North Sea Continental Shelf area in
accordance with principles of distributive justice or, on the other hand, the application of the
equidistance norm as a general principle of customary international law, what are the principles
that must guide the court in the proper delimitation of the areas under dispute? A) Is it the length
of the coastal states’ proper share of the continental shelf, so that abnormal configurations of the
coastline which would lead to unusually large or small continental shelf areas, must be rectified?
B) What conclusions, if any, can finally be drawn from the fact that the contending parties are
neighbors, sharing common interests in the exploration of a shelf area that constitutes an essential
unity?
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CHAPTER-5
THE COURT’S DECISION
It was decide that the use of the equidistance method had not crystallized into customary law and
was not obligatory for the delimitation of the areas in the North Sea related to the present
proceedings.
5.1 Relevant Findings of the Court:
Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article 6,
binding on Germany?
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.3 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
3
Article 6, Geneva Convention on the Continental Shelf 1958.
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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. 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.4 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.
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.
5. In conclusion, the court held that Germany had not acted in any way to incur obligations
contained in Article 6 of the Geneva Convention. The equidistance – special circumstances rule
was not binding on Germany by way of treaty.
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. 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
4
A. 35, Vienna Convention on Law of Treaties, 1969.
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the Convention. Therefore, they argued, Germany is bound by it by way of customary

international law.
7. To decide if the equidistance principle bound Germany by way of customary international law,
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.
What was the customary law status of Article 6 at the time of drafting the Convention?
8. The court held the principle of equidistance, as contained in Article 6, did not form a part of
existing or emerging customary international law at the time of drafting the Convention. 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 and (2) the fact
reservations to Article 6 was permissible under the Convention (Article 12). The court held:
… Article 6 is one of those in respect of which, under the reservations article of the Convention
(Article 12) reservations may be made by any State on signing, ratifying or acceding for,
speaking generally, it is a characteristic of purely conventional rules and obligations that, in
regard to them, some faculty of making unilateral reservations may, within certain limits, be
admitted; whereas this cannot be so in the case of general or customary law rules and obligations
which, by their very nature, must have equal force for all members of the international
community, 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 normal inference would therefore be that any
articles that do not figure among those excluded from the faculty of reservation under Article 12,
were not regarded as declaratory of previously existing or emergent rules of law.
9. The Apportionment Theory Rejected

The Court felt unable to accept, in the particular form it had taken, the first contention put
forward on behalf of the Federal Republic. Its task was to delimit, not to apportion the areas
concerned. The process of delimitation involved establishing the boundaries of an area already,
in principle, appertaining to the coastal State and not the determination de novo of such an area.
The doctrine of the just and equitable share was wholly at variance with the most fundamental of
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all the rules of law relating to the continental shelf, namely, that the rights of the coastal State in
respect of the area of continental shelf constituting a natural prolongation of its land territory
under the sea existed ipso facto and ab initio, by virtue of its sovereignty over the land. That right
was inherent. In order to exercise it, no special legal acts had to be performed. It followed that
the notion of apportioning an as yet undelimited area considered as a whole (which underlay the
doctrine of the just and equitable share) was inconsistent with the basic concept of continental
shelf entitlement.
Non-Applicability of Article 6 of the 1958 Continental Shelf Convention.5
Did the provisions in Article 6 on the equidistance principle attain the customary law status after
the Convention came into force?
10. 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., if
enough States had ratified the Convention in a manner to fulfil the criteria specified below), or
because of subsequent State practice (i.e. even if adequate number of States had not ratified the
Convention one could find sufficient State practice to meet the criteria below). The court held
that Article 6 of the Convention had not attained a customary law status.
11. For a customary rule to emerge the court held that it needed: (1) very widespread and
representative participation in the convention, including States whose interests were specially
affected (i.e. generality); and (2) virtually uniform practice (i.e. consistent and uniform usage)
undertaken in a manner that demonstrates (3) a general recognition of the rule of law or legal
obligation (i.e. opinio juries). In the North Sea Continental Shelf cases the court held that the
passage of a considerable period of time was unnecessary (i.e. duration) for the formation of a
customary law.
Widespread and representative participation
5
1969 North Sea Continental shelf case, pp. 18-19, 21-28.
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12. The court held that the first criteria were not met. The number of ratifications and accessions
to the convention (39 States) were not adequately representative (including of coastal States – i.e.
those States whose rights are affected) or widespread.
Duration
13. The court held that duration taken for the customary law rule to emerge is not as important as
widespread and representative participation, uniform usage and the existence of an opinio juris.
“Although the passage of only a short period of time (in this case, 3 – 5 years) is not necessarily,
or of itself, a bar to the formation of a new rule of customary international law on the basis of
what was originally a purely 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 as to show
a general recognition that a rule of law or legal obligation is involved (text in brackets added).”
Opinio juris
14. 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.
15. The Court examined 15 cases where States had delimited their boundaries using the
equidistance method, after the Convention came into force. The court concluded, 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. 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. This is consistent with Article
38 (1) (b) of the Statute of the ICJ. The following explains the concept of opinio juris and the
difference between customs (i.e. habits) and customary law:
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Not only must the acts concerned amount to a settled practice, but they must also be such, or be
carried out in such a way, as to be evidence of belief that this practice is rendered obligatory by
the existence of a rule of law requiring it. The need for such a belief, i.e, the existence of a
subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States
concerned must therefore feel that they are conforming to what amounts 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 tradition,
and not by any sense of legal duty.
The court concluded that the equidistance principle was not binding on Germany by way of
treaty or customary international law because, in the case of the latter, the principle had not
attained a customary international law status at the time of the entry into force of the Geneva
Convention or thereafter. As such, the court held that the use of the equidistance method is not
obligatory for the delimitation of the areas concerned in the present proceedings.
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CHAPTER-6
LEGAL VALUE
6.1 Equidistance principle
The 1958 Territorial Sea Convention defines equidistance as “the line every point of which is
equidistant from the nearest points of the baselines from which the breadth of the territorial sea
of each of the two States is measured.”6 The 1958 Continental Shelf Convention contains a
similar definition. This Convention employs the term “median line” for an equidistant line
between opposite States and refers only to a boundary determined by application of the principle
of equidistance in the case of adjacent States.7 It seems that the use of equidistance methods
depends on the baselines along the coasts of the respective States whose offshore areas are to be
separated by the boundary. There may be difficulties here if one State utilizes normal baselines,
following the sinuosities of the coasts, and the other employs a straight baseline system
connecting the outermost islands, promontories and rocks.8
According to the 1958 Conventions, the use of the equidistance method was obligatory in the
absence of an agreement, historical titles or special circumstances.
This was called the combined equidistance/special circumstances rule.9
The emergence of the equidistance principle in early treaty law, such as in the 1958 Conventions,
may be explained by the fact that this principle struck a certain balance between predictability
6
Article 12, 1958 Geneva Convention on the Territorial Sea and Contiguous Zone.
7
Article 6,1958 Geneva Convention on the Continental Shelf.
8
Lewis M. Alexander, The delimitation of maritime boundaries. 5 POLITICAL GEOGRAPHY QUARTERLY 22 (1986).
9
Article 12. 1958 Geneva Convention on the Territorial Sea and Contiguous Zone; Article 6. 1958 Geneva Convention on the
Continental Shelf.
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and flexibility, objectivity and discretion. Moreover, the combined rule generally respected the
principle of equal division of the area of converging or overlapping claims, in the absence of
inequities resulting from aberrant coastal features or major differences in coastal lengths. Finally,
it took account of adjacency or proximity to the coast as the legal basis of title for the territorial
sea and as an integral part of the basis of title for the CS. Later, with the appearance of the EEZ
doctrine, the factor of adjacency was dubbed the distance principle and assumed even greater
theoretical importance for delimitation purposes, as it became the single common element in the
basis of title to all offshore zones within the 200 nautical mile limit.10
The emergence of the principle of distance gives pertinence in normal situations to the equitable
method of the equidistance/median line. However, notwithstanding the recognition of the
principle of distance as the basis of entitlement to both the EEZ and the CS within 200 nautical
miles, the privileged role of equidistance was strongly objected by the ICJ and dissenting
judges.11 The ICJ and arbitral tribunals diminished the privileged status of equidistance method,
it was considered as a method, which in some cases may lead to inequitable and unreasonable
results. In the majority of cases, it was declared that equidistance was not a binding rule of law,
but merely one method among others and it was not regarded as part of customary international
law which plays the major role in delimitation process. The defects of the equidistance method,
even tempered by the notion of special circumstances, led to its undoing. The demolishing and
toning down of equidistance went so far that the terms “equidistance” and “median line” have
disappeared from the text of Article 74 and 83 of the 1982 LOS Convention. It remains only in
Article 15 of the 1982 LOS Convention. This was called “a holy war against equidistance” by the
French author Prosper Weil.12
In spite of the diminishing role of equidistance, it found its way into State practice.
10
Legault L. and Hankey B. Method, OPPOSITENESS AND ADJACENCY AND PROPORTIONALITY IN MARITIME
BOUNDARY DELIMITATION IN INTERNATIONAL MARITIME BOUNDARIES. Vol I. P. 204.1993.
11
Kwiatkowska, Barbara, Equitable maritime delimitation – A legal perspective, 3 INTERNATIONAL JOURNAL OF
ESTUARINE AND COASTAL LAW. 300 (1988).
12
Weil P. THE LAW OF MARITIME DELIMITATIO REFLECTIONS, p. 205, 1989.
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The majority of bilateral treaties on maritime delimitation still use a line based on simplified or
modified equidistance. In many cases, governments begin the negotiations by considering an
equidistance line, while subsequently at liberty to modify it.13 Even in most ICJ cases and
arbitral awards, judges found it convenient to use the equidistance line as the starting point in the
delimitation process. As Judge Jimenes De Arechaga declared “naturally, in all cases the
decision-maker looks at the line of equidistance, even if none of the parties has invoked it.”14
Thus, the point of departure should be the line of equidistance, and this line should be altered
only if it is found to produce inequitable results.15 The first case brought before the ICJ in 1969
was the case between three adjacent States,16 and was the case which started the demolition of
the equidistance principle.
Through this case, it ceased to be a principle and became merely one method among others.
The parties asked the Court to state the principles and rules of international law applicable, and
undertook thereafter to carry out delimitations on that basis. The Court rejected the contention of
Denmark and the Netherlands to the effect that the delimitations in question had to be carried out
in accordance with the principle of equidistance as defined in Article 6 of the 1958 Geneva
Convention on the Continental Shelf, holding:
That the provisions of Article 6 did not legally bind the Federal Republic, which had not ratified
the Convention; That the equidistance principle was not a necessary consequence of the general
concept of continental shelf rights, and was not a rule of customary international law.17
13
Nelson L.D.M. The roles of equity in the delimitation of maritime boundaries, 84 (4), AMERICAN JOURNAL
OF INTERNATIONAL LAW 84 (1990)
14
1982 ICJ Continental shelf case (Tunisia/Libyan Arab Jamahiriya), p. 105 pp.18
15
Id. pp. 18 p. 105.
16
1969 North Sea Continental Shelf Case (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands).
17
Ibid. pp.3
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Rejecting the contentions of Denmark and the Netherlands, the Court considered that the
International Law Commission as an emerging rule of customary international law had not
proposed the principle of equidistance, as codified in Article 6 of the 1958 Geneva Convention
on the Continental Shelf. This article could not be said to have reflected or crystallized such a
rule. This was confirmed by the fact that any State might make reservations in respect of Article
6, unlike Articles 1, 2 and 3, on signing, ratifying or acceding to the 1958 Geneva Convention on
the Continental Shelf.
The Court found the use of the equidistance line inapplicable, because the particular coastal
configuration of States was taken into account. The coasts of Denmark and the Netherlands were
convex, while that of the Federal Republic of Germany was concave. In such a case, the use of
equidistance left Germany an exceptionally small part of the North Sea CS and the delimitation
process would not achieve an equitable result.
However, the Court commented that it “has never been doubted that the equidistance method of
delimitation is a very convenient one”18 and that “it would probably be true to say that no other
method of delimitation has the same combination of practical convenience and certainty of
application.”
The second case involving adjacent States was in 1982, concerning the delimitation of the CS
between Tunisia and Libyan Arab Jamahiriya.19 The two parties asked the Court to clarify what
are the principles and rules of international law which may be applied for the delimitation of a
CS between two States and during the process to apply equitable principles and relevant
circumstances, as well as recent trends admitted at UNCLOS III. Also, the parties requested the
Court to show the practical way how to apply the indicated rules and principles so as to enable
the experts of the two States to delimit those areas without any difficulties.20
18
1969 North Sea Cases. pp. 85.
19
1982 Continental shelf case (Tunisia/Libyan Arab Jamahiriya).
20
1982 Continental Shelf Case. p. 7.
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For the use of equidistance, the Court reviewed the developments since the 1969 North Sea
Continental Shelf Case involving adjacent States and noted that: Treaty practice, as well as the
history of Article 83 of the draft convention on the Law of the Sea, leads to the conclusion that
equidistance may be applied if it leads to an equitable solution; if not, other methods should be
employed.21
Following this view, the Court did not consider that the case:
[…] required, as a first step, to examine the effects of a delimitation by application of the
equidistance method, and to reject that method in favour of some other only if it considers that
results of an equidistance line to be inequitable [...] since equidistance is not, in the view of the
Court, either a mandatory legal principle, or a method having some privileged status in relation
to other methods.22 Since equidistance was neither a mandatory legal principle nor a privileged
method, its use in the present case could only be based on the evaluation and balancing of all
relevant circumstances. Also, both parties discarded the use of equidistance and made formal
submission indicating that its use would result in an inequitable result, but at the same time added
that this would not prevent the Court from adopting an equidistance line if that would “bring
about an equitable solution of the dispute.”23
This is indeed how the Court decided to generally proceed in the second sector of the boundary
line, where the situation of adjacency between the coast of Libya and Tunisia has been modified
to that of opposite States by the geographical configuration of the Tunisian coast, and where the
Court decided to give a half-effect to the Kerkennah Islands of Tunisia. This modification
produced “a situation in which the position of equidistance line becomes the factor to be given
more weight in the balancing of equitable consideration than would otherwise be the case.”24
However, since the Court considered that equidistance was not a privileged method, it applied
the modified equidistance line in the second sector as a measure of equity. It seems that the Court
21
Id. pp. 109.
22
Id. pp. 110.
23
Id. pp. 110.
24
1982 continental shelf case. pp. 126.
Page | 21
realised that in the case of opposite coasts, the use of equidistance in combination with relevant
circumstances could led to an equitable result.
In 1984, two adjacent States, the Unites States of America and Canada requested an ICJ
Chamber, to draw a single maritime boundary in the Gulf of Maine for both the continental shelf
and fishery zones.25
The parties requested the Chamber to pronounce, in accordance with the principles and rules of
international law applicable in the matter between the parties, on the following: “what is the
25
1984 Gulf of Maine Case (Canada/United States of America)
Page | 22
course of the single maritime boundary that divided the continental shelf and fisheries zone
between the respective States.”26
In its submission, Canada invoked the application of the equidistance line based on Article 6 of
the 1958 Convention on the Continental Shelf, which was in force for both States. According to
the Canadian view, the equidistance/special circumstances method should be applied as a treaty
rule for the CS and as a general norm for the delimitation of the adjacent fishery zone. The
Chamber said as treaty law for the CS this principle could be valid, but to accept the latter […]
would amount to transforming the combined equidistance/special circumstances rule into a rule
of general international law, and thus on capable of numerous application, whereas there is no
trace in international custom of such transformation having occurred.
The Chamber also pointed out that equidistance […] can not have such mandatory force even
between States which are parties to the convention, as regards to a maritime boundary
concerning a much wider-subject than the continental shelf alone.27
The Chamber also took into account the view expressed in the 1969 North Sea case, that
equidistance was not a principle of customary international law, thus not a method to be given
priority,28 and later added that it has no “intrinsic merits which could make it preferable to
another in the abstract.”29
The Chamber drew a single maritime boundary for three sectors, as was indicated by the parties
in their special agreement. For the first sector, the Chamber did not favor the equidistance
method which, apart from not being a mandatory rule for a single delimitation, would give undue
importance to islands, uninhabited rocks or low-tide elevations as base points for the drawing of
a line intended to equally divide a given area.
26
Article II of the special agreement, 1984 Gulf of Maine case.. p. 253.
27
1984 Gulf of Maine case. Par. 124.
28
Id. pp. 107.
29
Id. pp. 162.
Page | 23
In the second sector, the sudden change in the direction of the coastline in the northeastern part
of the Gulf of Maine transformed the initial lateral adjacency situation into an opposite relation.
In such a situation, the Chamber noted that since the geographical relationship was that of
opposite States, only an equidistance/median line could have the appropriate result.30
Consequently location of the equidistance line was adjusted taking into account the
30
See: 1984 Gulf of Maine case. pp. 216.
Page | 24
proportionality of the length of the coasts of the respective States, and by correcting this line so
as to give half-effect to two tiny islands in front of the Canadian coast.31For the third sector, the
ICJ also did not favour the equidistance line. Instead, it found it equitable to draw a
perpendicular line because this line reflected to a certain extent the general direction of the
United States coast and the perpendicular line was, in practice, a true equidistance line.32
In this case, the Chamber used the equidistance line in the situation where the coast transformed
in opposite relation, as with the 1982 Tunisia/Libya case, and corrected it according to the
relevant circumstances.
31
1984 Gulf of Maine case. pp. 218-222.
32
: McHugh, Paul D. International law-delimitation of maritime boundaries, 25 NATURAL RECOURSES JOURNAL, 1033-
1034 (1985)
Page | 25
CONCLUSION
Thus, the ICJ in rejecting the principles laid down in the Geneva Convention and other
documents like the Truman Proclamation actually was giving a decision ex aequo et bono, under
the guise of interpretation. The Court applied a kind of distributive justice while denying that it
was doing so.
The Court’s ruling removes the legal credibility of the equidistance principle and puts out this
case as judicial precedence, on the delimitation of the continental shelf as Article 6 is subjected
to be tainted with the negative impact of utilization through the Geneva Convention. This
decision does not affect the validity of the rest of the Convention.
It should also be noted that the decision of the court did not prescribe any specific remedy and
cannot significantly aid in any future decisions, other than for the purpose of denying the
equidistance principle legal weight and directing disputing states to look to cooperative action.
According to Prof. Oyebode33, the North Sea continental shelf cases became good justification
for the law that as drilling rigs, floating islands, stationary platforms, submersibles and artificial
structures above and below the surface of the sea multiply, the traditional freedoms of fishing
and shipping, however strongly they may be affirmed theoretically, must be qualified, restricted
and ultimately excluded. Ultimately, this case displays that as there is advancement in technology
and technological research, there will always be competing interest that underlines the urgent
necessity of a definite vertical or horizontal limitation of the continental shelf, instead of the
open-ended “grab” situation which extends the continental shelf to 200 Nautical Miles from the
baselines from which the breath of the territorial sea is measured, particularly amongst opposite
and adjacent coastal states.
33
Akin Oyebode INTERNATIONAL LAW AND POLITICS: AN AFRICAN PERSPECTIVE
(Bolabay Publications, Lagos, Nigeria:2003) p. 31-45 (2003)
Page | 26
BIBLIOGRAPHY
BOOKS
 Prescott V and Schofield C. THE MARITIME POLITICAL BOUNDARIES OF THE

WORLD p. 216.( 2005)
 Jagota S. P. MARITIME BOUNDARY. pp. 49-50 (2001)
 Gerard J. Tanja. THE LEGAL DETERMINATION OF INTERNATIONAL MARITIME
BOUNDARIES. p. 6 (1990).
 Shaw, INTERNATIONAL LAW, SOURCES (2003).

 Dixon, TEXTBOOK ON INTERNATIONAL LAW, THE SOURCES OF
INTERNATIONAL LAW (2000)
 Brownlie, PUBLIC INTERNATIONAL LAW, SOURCES OF THE LAW (2004)
 M.Akehurst, “CUSTOM AS A SOURCE OF INTERNATIONAL LAW”, (1974-75)
 Ian, Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 6th Ed. (New

York: Oxford University Press, 2003) p. 8. (2003)
 Kolb R. CASE LAW ON EQUITABLE MARITIME DELIMITATION, 171(2003)
 Legault L. and Hankey B. Method, OPPOSITENESS AND ADJACENCY AND
PROPORTIONALITY IN MARITIME BOUNDARY DELIMITATION IN INTERNATIONAL
MARITIME BOUNDARIES. Vol I. p. 204 (1993)
 Weil P. THE LAW OF MARITIME DELIMITATIO REFLECTIONS, p. 205 (1989)
JOURNALS/ARTICLES
 Edward Collins, Jr. and Martin A.Rogoff. The international law of maritime boundary
delimitation, 34 MAINE LAW REVIEW 1-2 (1982).
 Nelson L.D.M. The roles of equity in the delimitation of maritime boundaries, 84 (4),
AMERICAN JOURNAL OF INTERNATIONAL LAW 84 (1990)
Page | 27
 Lewis M. Alexander, The delimitation of maritime boundaries, 5 POLITICAL

GEOGRAPHY QUARTERLY 22 (1986).
 Adede. A.O., Toward the formulation of the rule of delimitation of sea boundaries
between states with adjacent or opposite coasts, 19 VIRGINIA JOURNAL OF
INTERNATIONAL LAW 214 (1979).
 Jonathan I. Charney. Progress in international maritime boundary delimitation law, 88
AMERICAN JOURNAL OF INTERNATIONAL LAW 228 (1994).
 Kwiatkowska, Barbara, Equitable maritime delimitation – A legal perspective, 3
INTERNATIONAL JOURNAL OF ESTUARINE AND COASTAL LAW 300 (1988).
 McHugh, Paul D. International law-delimitation of maritime boundaries, 25 NATURAL
RECOURSES JOURNAL, 1033-1034 (1985).
CONVENTIONS
∑Geneva Convention on the Continental Shelf, 1958.
∑Vienna Convention on Law of Treaties, 1969.
∑Geneva Convention on the Territorial Sea and Contiguous Zone, 1958
∑Geneva Convention on the Continental Shelf, 1958
∑Geneva Convention on the Territorial Sea and Contiguous Zone, 1958
∑Geneva Convention on the Continental Shelf, 1958
Page | 28
ANNEXURE
CASES
 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal

Republic of Germany/Netherlands)., ICJ (1969), pp. 76- 77.
 Nicaragua Vs. USA, ICJ (1986), p.108 -109, 188 – 190
 Continental Shelf (Libya/Malta) ICJ (1985), pp. 34

 Rights of Passage Case (Portugal Vs. India), ICJ (1960), pp. 42 and 43.
Page | 29

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NORTH SEA CONTINENTAL SHELF CASE: A CASE STUDY

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Roll No. – 142

father gave in finishing of this task.

Roll No. – 142

2. Facts of the case 07

3. Contention of the parties 09

4. Questions before the Court 10

1.2 METHODOLOGY OF STUDY

1.3 OBJECTIVES OF THE STUDY

2) To evaluate the findings of the court in the case.

5.1 Relevant Findings of the Court:

the Convention. Therefore, they argued, Germany is bound by it by way of customary

9. The Apportionment Theory Rejected

Non-Applicability of Article 6 of the 1958 Continental Shelf Convention.5

Widespread and representative participation

6.1 Equidistance principle

This was called the combined equidistance/special circumstances rule.9

OF INTERNATIONAL LAW 84 (1990)

another in the abstract.”29

 Prescott V and Schofield C. THE MARITIME POLITICAL BOUNDARIES OF THE

 Shaw, INTERNATIONAL LAW, SOURCES (2003).

 Ian, Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 6th Ed. (New

 Lewis M. Alexander, The delimitation of maritime boundaries, 5 POLITICAL

 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal

 Continental Shelf (Libya/Malta) ICJ (1985), pp. 34

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