26 North Sea Continental Shelf Cases (Germany v. Denmark and the 2.
2. The parties asked the Court to determine what principles and rules of
Netherlands) (Kori)
20 February 1969 | State Practice: Custom
Petitioner: Federal Republic of Germany and Kingdom of Denmark
Respondents: Federal Republic of Germany and Kingdom of Netherlands
SUMMARY: The case is about the delimitation of the continental shelf areas in the
North Sea between Germany and Denmark, and Germany and Netherlands. The
parties asked the Court to determine what principles and rules of international law
are applicable to the delimitation of the areas of the continental shelf involved. For
Denmark and Netherlands, they contended that the matter should be governed by
the “equidistance-special circumstances” rule which can be found in the second
paragraph of Article 6 of the Geneva Convention on the Continental Shelf, which
they both signed and ratified making them parties to it. However, Germany
contends that the rule that should be followed is the “just and equitable share” of
the available continental shelf in proportion to the length of its coastline or sea-
frontage. It also contends that the “equidistance-special circumstances” rule is not
applicable to it because it is not a party to the Geneva Convention. Thus, Denmark
and Netherlands contends that the said rule is considered as customary law,
which is binding to everyone. The Court held that it is not customary international
law, and does not bind Germany.
DOCTRINE: 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.
FACTS:
1. The case is about the delimitation of the continental shelf areas in the North
Sea between Germany and Denmark, and Germany and Netherlands.
international law are applicable to the delimitation of the areas of the
continental shelf involved.
3. For Denmark and Netherlands, they contended that the matter should be
governed by the “equidistance-special circumstances” rule which can be
found in the second paragraph of Article 6 of the Geneva Convention on
the Continental Shelf, which they both signed and ratified making them
parties to it. (added the codal under Other Notes)
4. Based on this contention, “equidistance” is an essential element in the
rule of law that in the absence of agreement by the Parties to employ
another method or to proceed to a delimitation on an ad hoc basis, all
the continental shelf boundaries must be drawn by means of an
equidistance line, unless there are “special circumstances”
5. Equidistance line is defined as a line every point on which is the same
distance away from whatever point is nearest to it on the coast of each
of the countries concerned or on the baseline of the territorial sea along
the coast.
6. According to Denmark and Netherlands, the equidistance-special
circumstances is binding to Germany because of the Geneva
Convention on the Continental Shelf, and it being a customary
international law.
7. On the other hand, Germany contends that the rule that should be
followed is the “just and equitable share” of the available continental
shelf in proportion to the length of its coastline or sea-frontage.
8. It also contends that the equidistance-special circumstances is not
binding to it because it is not party to the Geneva Convention (being only
a signatory), and that it is not a customary international law.
ISSUE:
1. W/N the equidistance-special circumstances principle is considered as
customary law, which makes it mandatory? - NO
RATIO:
On whether the equidistance-special circumstances principle is considered
as customary law, which makes it mandatory? - NO
1. There are several factors in which the Court looked into to see if the said
principle can be considered as customary law.
2. First, if it has become a norm-creating provision that it forms basis of a
general rule of law.
3. On this aspect, the Court held that it is doubtful because it is framed
under Article 6 of the Geneva Convention as a secondary obligation that
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 would only apply if there are no prior agreement between the parties. The
Court finds this unusual to what is claimed to be a general rule of law.
4. The notion of the special circumstances in Article 6 also creates doubt as to
the norm-creating character of the provision.
5. The Court also said that the fact that reservations can be made makes it
hard for the provision to have a norm-creating effect that would make it part
of the general law.
6. The second factor that the Court looked into is if there is a widespread and
representative in the convention.
7. The Court said that the ratifications and accessions are hardly sufficient,
8. Third, the Court looked into the time element stating that it is over ten years
since it was signed, but only less than five years since it took forced.
9. On this aspect, it was said that
Although the passage of only a short period of time 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.
10. Lastly, the Court looked into the State practice in the matter of continental
shelf delineation. It looked into 15 cases where States used the
equidistance principle and concluded that the actions of the States do not
constitute as opinio juris, which is acting based on a sense of legal
obligation.
11. It said that
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.
12. The Court concludes that if the Geneva Convention was not
originally a mandatory rule of customary international law requiring
States to use the equidistance principle for the delimitation, and
neither its subsequent effect been constitutive of such rule, the
current State practice has also been insufficient to make it a
customary law.
OTHER NOTES:
1. The Court did not accept the contention of Germany that the just and
equitable share must be followed because it only applies to
apportionment of areas.
2. It said that delimitation in an equitable manner is not the same as
awarding a just and equitable share of a previously undelimited area.
3. In addition, delimitation cannot award an equitable share or a share at all
for its fundamental concept does not admit that there is anything
undivided to share out.
4. Article 6, ¶ 2 of the Geneva Convention provides that
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 another boundary line is
justified by special circumstances, the boundary 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 State is measured.
DISPOSITION:
The Court, by eleven votes to six, finds that, in each case,
(A) the use of the equidistance method of delimitation not being
obligatory as between the Parties; and
(B) there being no other single method of delimitation the use of
which is in all circumstances obligatory;
(C) the principles and rules of international law applicable to the delimitation as
between the Parties of the areas of the continental shelf in the North Sea which
appertain to each of them beyond the partial boundary determined by the
agreements of 1 December 1964 and 9 June 1965, respectively, are as follows:
(1) delimitation is to be effected by agreement in accordance with equitable
principles, and taking account of all the relevant circumstances, in such a way as
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to leave as much as possible to each Party all those parts of the continental shelf
that constitute a natural prolongation of its land territory into and under the sea,
without encroachment on the natural prolongation of the land territory of
the other;

(2) if, in the application of the preceding sub-paragraph, the delimitation leaves to the
Parties areas that overlap, these are to be divided between them in agreed
proportions or, failing agreement, equally, unless they decide on a regime of joint
jurisdiction, user, or exploitation for the zones of overlap or any part of them;

(D) in the course of the negotiations, the factors to be taken into

account are to include:

(1) the general configuration of the coasts of the Parties, as well as the
presence of any special or unusual features;

(2) so far as known or readily ascertainable, the physical and geological structure,
and natural resources, of the continental shelf areas involved;

(3) the element of a reasonable degree of proportionality, which a delimitation

carried out in accordance with equitable principles ought to bring about between the
extent of the continental shelf areas appertaining to the coastal State and the length
of its Coast measured in the general direction of the coastline, account being taken
for this purpose of the effects, actual or prospective, of any other continental shelf
delimitations between adjacent States in the same region.