North Sea Continental Shelf Cases (1969) - LexForti

30/11/2021, 13:03 North Sea Continental Shelf Cases (1969) - LexForti
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NORTH SEA
CONTINENTAL SHELF
CASES (1969)
By LexForti Legal News Network / In Important Cases, International Law, Military Law /
April 23, 2020 / 7 Min read / Add comment
Paridhi Dave | Institute of Law, Nirma University | 16th April 2020
”
Federal Republic of Germany / Denmark Clubbed With Federal Republic
of Germany / Netherlands
FACTS OF THE CASE
The present case covers claims of three parties with regard to a

Continental Shelf in North Sea, wherein both Denmark and Netherlands
submitted individual disputes with Germany to the International Court of
Justice. This was done via two Special Agreements to decide the applicable
principles and rules of international law. The ICJ clubbed both the claims
and gave a single judgment.
The problem pertains to the geographical location of these three countries.

The boundary of the Federal Republic is concave in nature as opposed to
the convex boundaries of Denmark and Netherlands. Denmark and
Netherlands contended that the equidistance method should be followed,
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which
April 23,is also provided in the Geneva Convention on Continental Shelf.
2020
https://lexforti.com/legal-news/north-sea-continental-shelf-cases-1969/ 1/9
They argued that this equidistance principle was a rule of customary

international
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priori rule andSUBMISSION
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a general rule of conventional
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practicality.
The Federal Republic of Germany denied its obligatory character as it was

only a signatory to the Geneva Convention and had not ratified it. It
claimed that the equidistance method was unfair to it, since it had a
concave coastline and this method would lead to it having lesser area in
the Continental Shelf. The Federal Republic further argued for
apportionment of the shelf in proportion of its coastline or sea-frontage.
The bone of contention in this case was about delimitation of the Shelf in a
manner which would give a ‘just and equitable share’ to all three parties.
The parties were eventually in consonance that the Court was not to
physically apportion the claims, but merely prescribe a suitable method of
delimitation which could be followed
ISSUES
1. Whether the Geneva Convention of 1958, on the Continental Shelf and

particularly Article 6 is binding for Germany?
2. Whether the equidistance principle had become a rule of Customary

International Law since the adoption of the Continental Shelf
Convention and is Germany bound by it?
RULE
1. Article 6 (2) of the Geneva Convention on the Continental Shelf, 1958.
Where the same continental shelf is adjacent to the territories of two

adjacent States, the boundary of the continental shelf shall be determined
by agreement between them. In the absence of agreement, and unless
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is justified by special circumstances, the boundary
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April 23, 2020
shall be determined by application of the principle of equidistance from
the nearest points of the baselines from which the breadth of the territorial

sea of each
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is measured.
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ANALYSIS / APPLICATION
The present case deals with significant arguments in the sphere of

International Law.
The Federal republic of Germany had signed the Convention of 1958

but it had not ratified it. The Netherlands and Denmark contended
that Germany had unilaterally assumed the obligations arising out of
the Convention or had perhaps manifested its acceptance of the
provisions of the same, with respect to the shelf delimitation
provisions.
This argument was rejected by the Court. The Court emphasized the
existence of situation of estoppel which could preclude Germany
from denying the applicability of the conventional regime which
caused Denmark or the Netherlands to detrimentally change their
position or suffer some prejudice. However, there is no such evidence
in this case.
The Court concluded that Article 6(2) was not a ‘norm-creating’

provision. The possibility of reservations, emphasis on agreement as
the primary means of delimitation and the ‘special circumstances’
provision made the Court unable to declare that it was such a rule.[1]
The Court held that merely raising no objection to the equidistance
principle as under Article 6, is not a sufficient reason to state that the
principle is binding on Germany. In a nutshell, the equidistance-
special circumstance rule was not binding on Germany by virtue of
treaty law.
The Netherlands and Denmark then argued under Article 6 that

Germany was bound by it by way of customary international law
since the Article existed independently of the Convention.
By LexForti Legalrejected
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this argument, and clarified that the principle of comment
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equidistance under Article 6 did not form a part of existing or
emerging customary law when the Convention was drafted. The


Article did not attain the status of customary international law even
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subsequent to the Convention coming into force.
The Court emphasized upon the aspects of generality and uniform

practice in consonance with opinio juris for the emergence of a
customary law. Hence, the Federal Republic was not bound by the
equidistance principle either by treaty law or by customary law.
The Court formulated three working rules, wherein it derived the

existence of the first rule from the Special Agreements arising out of
the Truman Proclamation, 1945. The Court concluded that whatever
method of delimitation was applied, the results should be equitable.
CONCLUSION
Judgment
Bench
President Bustamante Y Rivero; Vice President Koretksy; Judges Sir Geral

Fitzmaurice, Tanaka, Jessup, Morelli, Sir Muhammad Zafrulla Khan,
Padilla Nervo, Forster, Gros, Ammoun, Bengzon, Petren, Lachs, Onyema;
Judges Ad Hoc Mosler, Sorensen; Registrar Aquarone.
Ratio Decedendi
The Court on 20th February, 1969 by eleven votes to six delivered its
judgment.[2] This was the thirtieth judgment of the ICJ since its inception
in 1945.
The Court came to the conclusion that, the use of equidistance method of
delimitation did not impose an obligatory nature on the parties by way of
either treaty law or customary practices. It held that the delimitation has to
be effected by agreement in accordance with the equitable principles and
after taking into consideration all relevant circumstances. It further laid
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down
April 23,the
2020intricacies which had to be followed while formulating the
agreement and carrying out the distribution of the Shelf among the three

parties.
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Analysis
The case primarily dispelled the myth that the duration of state practice
formed an essential factor in forming customary international law.[3] It
then went on to explain what constitutes as an essential element in the
formation of customary international law.
This case confirmed the essential twin elements of customary

international law.
State Practice
Opinio juris – derived from the maxim ‘opinion juris sive

necessitatis’.
Through this case, the importance of the subjective element of ‘opinio

juris’ can be derived. Even though the Court examined 15 cases where
States had delimited their boundaries using the equidistance method
(subsequent to the enforcement of the Convention); the Court concluded
that in spite of existence of State Practice, the necessary opinio juris could
not be deduced. Moreover, among the fifteen cases that have been cited,
most of the delimitations concerned were median-line delimitations
between geographically opposite States, not lateral delimitations between
adjacent States, such as in the present case.
Opinio juris is reflected through two ways:
Acts (Explained in: Nicaragua Case)
Omissions (Explained in: S.S. Lotus Case)
However, these acts/omissions should provide evidence of the belief that

there is a legal
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Legal on the State to do so. In customary international
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Aprilopinio
law, 23, 2020juris forms an essential element which is required to establish
a legally binding custom. It constitutes more of a psychological feeling /

obligation on the
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State to
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follow a certain
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practice. It is an unsettled
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and
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debated notion in international law. It leads to the conclusion that the

recognition of custom under traditional international law may be a result
of self-interested behaviour of the state and that the changes in CIL are
very malleable and fluid in their orientation.
The judgment is of significance to every State which shares a continental

shelf with an adjacent State where one or both of the States are not parties
to the 1958 Convention.
[1] Geoffrey Marston, North Sea Continental Shelf Cases, Federal Law
Review, Vol. 3 at 283, 283-292.
[2] North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 3.
[3] Ruwanthika Gunaratne, North Sea Continental Shelf Cases (Summary),

PUBLIC INTERNATIONAL LAW,
https://ruwanthikagunaratne.wordpress.com/2014/02/28/north-sea-
continental-shelf-cases-summary/.
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Paridhi Dave | Institute of Law, Nirma University | 16th April 2020

FACTS OF THE CASE

The present case covers claims of three parties with regard to a

The problem pertains to the geographical location of these three countries.

They argued that this equidistance principle was a rule of customary

The Federal Republic of Germany denied its obligatory character as it was

1. Whether the Geneva Convention of 1958, on the Continental Shelf and

2. Whether the equidistance principle had become a rule of Customary

1. Article 6 (2) of the Geneva Convention on the Continental Shelf, 1958.

Where the same continental shelf is adjacent to the territories of two

The present case deals with significant arguments in the sphere of

The Federal republic of Germany had signed the Convention of 1958

The Court concluded that Article 6(2) was not a ‘norm-creating’

The Netherlands and Denmark then argued under Article 6 that

emerging customary law when the Convention was drafted. The

subsequent to the Convention coming into force.

The Court emphasized upon the aspects of generality and uniform

The Court formulated three working rules, wherein it derived the

President Bustamante Y Rivero; Vice President Koretksy; Judges Sir Geral

This case confirmed the essential twin elements of customary

Opinio juris – derived from the maxim ‘opinion juris sive

Through this case, the importance of the subjective element of ‘opinio

Opinio juris is reflected through two ways:

Acts (Explained in: Nicaragua Case)

Omissions (Explained in: S.S. Lotus Case)

However, these acts/omissions should provide evidence of the belief that

a legally binding custom. It constitutes more of a psychological feeling /

debated notion in international law. It leads to the conclusion that the

The judgment is of significance to every State which shares a continental

[2] North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 3.

[3] Ruwanthika Gunaratne, North Sea Continental Shelf Cases (Summary),

ABOUT THE AUTHOR

LEXFORTI LEGAL NEWS NETWORK

By LexForti Legal News Network

knowledge through the Daily Legal News segment of our Website. It

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September 25, 2021

LAW OF THE SEA AN

INTERNATIONAL LAW GOVERNING

CENTRE SERVES LAST NOTICE TO

GOA COURT PASSED AN

May 26, 2021

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