Article 38 accept the delimitation on an equidistance
1. The Court, whose function is to decide in basis.
accordance with international law such disputes as
are submitted to it, shall apply:
a. international conventions, whether general
or particular, establishing rules expressly recognized
by the contesting states;
b. international custom, as evidence of a
general practice accepted as law;
c. the general principles of law recognized by
civilized nations;
d. subject to the provisions of Article 59,
judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as
subsidiary means for the determination of rules of
law.
2. This provision shall not prejudice the power of the
Court to decide a case ex aequo et bono, if the parties
agree thereto.
ARTICLE 59
The decision of the Court has no binding force except
between the parties and in respect of that particular
case.
Facts. That the boundaries between their
respective areas of the continental shelf in
the North Sea and the area claimed by the
Federal Republic of Germany (D), should be
determined by the application of the
principle of equidistance as set forth in
Article 6 of the Geneva Convention of 1958
on the Continental Shelf, which by January
1, 1969 had been ratified or acceded to by
39 states but to which Germany was not a
party, was the basis of Denmark’s (D) and
the Netherland’s (P) contention.
Because the use of the delimitation method
was not merely a conventional obligation,
but a rule that was part of the corpus of
general international law and like other rules
of general or customary international law,
which was binding automatically on
Germany (D), independent of any specific
assent, direct or indirect, given by Germany
(D), Denmark (P) and the Netherland’s (P)
contended that Germany (D) was bound to
Issue. Must delimitation be the object of an
equitable agreement between the states
involved?
Held. Yes. Delimitation must be the object
of an equitable agreement between the states
involved. As stipulated in Article 6 of the
Geneva Convention, equidistance principle
is not part of customary international law.
Article 6 makes the obligation to use the
equidistance method a secondary one which
comes into play only when agreements
between the parties are absent. Although the
principle of equidistance is not given a
fundamental norm-creating character by
Article 6, which is necessary to the
formation of a general rule of law.
In this case, after taking into consideration
all relevant circumstances, the delimitation
here is to be excused by equitable
agreement.
Dissent. (Lachs, J.) not only the states who
are parties to the Convention on the
Continental Shelf have accepted the
principles and rules enshrined in the
Convention including the equidistance rule,
but by other states who that have
subsequently followed it in agreements, or
in their legislation, or have acquiesced in it
when faced with legislative acts of other
affecting them. This can be seen as evidence
of a practice widespread enough to satisfy
the criteria for a general rule of law.
Discussion. The concept of opinion juris
analyzed by the dissent is in consonance
with the position taken by some legal accordance with the principle of
scholars who maintain that opinio juris may equidistance as defined in the 1958
be presumed from uniformities of practice
regarding matters viewed normally as Geneva Convention on the Continental
involving legal rights and obligations. A Shelf. The Court took account of the fact
contrary position maintains that the practice that the Federal Republic had not
of states must be accompanied by or consist ratified that Convention, and held that
of statements that something is law before it
can become law the equidistance principle was not
inherent in the basic concept of
These cases concerned the delimitation continental shelf rights, and that this
of the continental shelf of the North Sea principle was not a rule of customary
as between Denmark and the Federal international law.
Republic of Germany, and as between
the Netherlands and the Federal
Republic, and were submitted to the
Court by Special Agreement. The Parties
asked the Court to state the principles
and rules of international law
applicable, and undertook thereafter to
carry out the delimitations on that
basis. By an Order of 26 April 1968 the
Court, having found Denmark and the
Netherlands to be in the same interest,
joined the proceedings in the two cases.
In its Judgment, delivered on 20
February 1969, the Court found that the
boundary lines in question were to be
drawn by agreement between the
Parties and in accordance with
equitable principles in such a way as to
leave to each Party those areas of the
continental shelf which constituted the
natural prolongation of its land territory
under the sea, and it indicated certain
factors to be taken into consideration
for that purpose. The Court rejected the
contention that the delimitations in
question had to be carried out in