NORTH SEA CONTINENTAL SHELF CASES Judgment of 20 February 1969

Facts:

 The Federal Republic of Germany and Denmark and the Netherlands have been unable to agree
on the prolongation of the partial boundaries of its land territory into and under the sea mainly
because Denmark and the Netherlands wanted the delimitation of such boundaries to be based
on the equidistance principle.
 Germany opposed the proposition of Denmark and Netherlands because it would unduly curtail
the proper share of continental shelf area of Germany. Germany argued that the length of the
coastlines be used to determine the delimitation.
 Denmark and Netherlands contended that:
o 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”
o 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
equidistant 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 of Germany, 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.

Issue: Whether the equidistance principle was binding on Germany as a customary international law or
treaty law. Both are in the negative.

Ruling:

NOT BINDING AS A CUSTOMARY INTERNATIONAL LAW

The Court considered that the principle of equidistance, as it figured in the Article 6 of the Geneva
Convention, had not been proposed by the International Law Commission as an emerging rule of
customary international law. This article could not be said to have reflected or crystallized such a rule.

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 (in this case, they were coastal States) (i.e. generality), in the
present case, the number of ratifications and accessions so far was hardly sufficient(39 states).
2. virtually uniform practice (i.e. consistent and uniform usage) undertaken in a manner that
demonstrates, in the said case, although the passage of only a short period of time was not
necessarily a bar to the formation of a new rule of customary international law on the basis of
what was originally a purely conventional rule, it was indispensable that State practice during
that period, including that of States, whose interest were specially affected, should have been
both extensive and virtually uniform in the sense of the provision invoked and should have
occurred in such a way as to show a general recognition that a rule of law was involved.
3.  (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.

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.

NOT BINDING AS A TREATY LAW

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).

The Court rejected this argument. 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).

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.

In conclusion, 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.

For all the foregoing reasons, the Court found in each case that the use of the equidistance
method of delimitation was not obligatory as between the Parties; that no other single method of
delimitation was in all circumstances obligatory; that delimitation was to be effected by agreement in
accordance with equitable principles and taking account of all relevant circumstances,in such a way as
to leave as much as possible to each Party all those parts of the continental shelf that constituted a
natural prolongation of its land territory, without encroachment on the natural prolongation of the
land territory of the other; and that, if such delimitation produced overlapping areas, they were to be
divided between the Parties in agreed proportions, or, failing agreement, equally, unless they decided
on a regime of joint jurisdiction, user, or exploitation.

In the course of negotiations, the factors to be taken into account were to include: the general
configuration of the coasts d the Parties, as well as the presence of any special or unusual features; so
far as known or readily ascertainable, the physical and geological structure and natural resources of the
continental shelf areas involved; the element of a reasonable degree of proportionality between the
extent of the continental shelf areas appertaining to each State and the length of its coast measured in
the general direction of the coastline, taking into account the effects, actual or prospective, of any other
continental shelf delimitations in the same region.