Case No.

8 North Sea Continental Shelf Case (1969)

FACTS
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 Court to decide the principles and rules of international law that are applicable to the
above delimitation because 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 was 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 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 was not asked to delimit because the parties had already agreed to delimit the continental shelf as
between their countries, by agreement, after the determination of the Court on the applicable principles.
It had been contended on behalf of Denmark 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.
Moreover, Netherlands and Denmark argued that Article 6 also reflected ‘the accepted rule of general
international law on the subject of continental shelf delimitation’ and that it existed independently of the
Convention. Therefore, they argued, Germany is bound by the subject matter of Article 6 by way of customary
international law.
ISSUE
Whether Germany is under a legal obligation to accept the equidistance-special circumstances principle,
contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958, either as a customary
international law rule or on the basis of the Geneva Convention?
Whether the equidistance-special circumstances principle has attained a status of customary
international law and therefore binding upon Germany. (punta ka agad sa number 2)
RULING
Article 6 of the Geneva Convention stated that unless the parties had already agreed on a method for
delimitation or unless special circumstances exist, the equidistance method would apply. Germany had signed,
but not ratified, the Geneva Convention, while Netherlands and Denmark were parties to the Convention. The
latter two States argued that while Germany is not a party to the Convention (not having ratified it), she was
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).

It said that only a ‘very definite very consistent course of conduct on the part of a State would allow the Court
to presume that the State had somehow become bound by a treaty (by a means other than in the 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 (in other words, 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).
(VCLT) stipulates that obligations arise for third States from a provision of a treaty only if (1) the actual parties
to the treaty intended the provision to create obligations for third States; and (2) third State expressly accept
those obligations in writing
(1) the actual parties to the treaty intended the provision to create obligations for third States; and (2) third
State expressly accept those obligations in writing
The VCLT was not in force when the Court deliberated on this case. However, as seen above, the Court’s
position is consistent the VCLT.
the Court held that Germany had not acted in any manner so as 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 law.

2.) 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; and (2) its status after the Convention came into force.
sets out the dual requirement for the formation of customary international law: (1) State practice (the objective
element) and (2) opinio juris (the subjective element).

The Court held that 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, the International Law Commission, on
the inclusion of Article 6 into the Convention and (2) the fact that reservations to Article 6 was permissible
under the Convention
… 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 …” (see para 65 for a
counter argument and the Court’s careful differentiation)
This case sets out the dual requirement for the formation of customary international law: (1) State practice (the
objective element) and (2) opinio juris (the subjective element).
the Court explained the criteria necessary to establish State practice (1) very widespread and representative
participation in the Convention, including States whose interests were specially affected (in this case, they
were coastal States) (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
The Court held that the first criteria was not met. The number of ratifications and accessions to the Convention
(39 States) were not adequately representative or widespread.
Duration
That the duration taken for a customary law rule to emerge is not as important as widespread and
representative participation, uniform usage, and the existence of an opinio juris.

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.”
Opinio juris
The Court examined 15 cases where States had delimited their boundaries using the equidistance method,
after the Convention came into force (paras. 75 -77). The Court concluded that 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 Court explained the concept of
opinio juris and the difference between customs (i.e. habits) and customary law:

“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 a 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. 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.