International Court of Justice Contentious
Case: The North Sea Continental Shelf Cases
(Germany/Denmark; Germany/Netherlands).
Year of Decision: 1969.
Note: This post discusses only  aspects of the case
related to treaty and customary international law.
Overview: The jurisprudence of the North
Sea Continental Shelf Cases 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). In these cases, the Court explained the
criteria necessary to establish State practice –
widespread and representative participation.
It highlighted that the practices of those States
whose interests were specially affected by the
custom were especially relevant in the formation of
customary law. It also held that uniform
and consistent practice was necessary to
demonstrate opinio juris – opinio juris is the belief
that State practice amounts to a legal obligation.
The North Sea Continental Self Cases also dispelled
the myth that duration of the practice (i.e. the
number of years) was an essential factor in
forming customary international law.  proportionality to the length of its North Sea
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 argued that the principle of
equidistance was neither a mandatory rule in
delimitation of the continental shelf nor a rule of
customary international law that was binding on
Germany. 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.
Facts of the Case:
Netherlands and Denmark had drawn partial
boundary lines based on the equidistance principle
(A-B and C-D). An agreement on further
prolongation of the boundary proved difficult
because Denmark and Netherlands wanted this
prolongation to take place based on the
equidistance principle (B-E and D-E) where as
Germany was of the view that, together, these two
boundaries would produce an inequitable result for
her. 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
coastline. The Court had to decide the principles
and rules of international law applicable to this
delimitation. In doing so, the Court had to decide if
the principles espoused by the parties were binding
on the parties either through treaty law or
customary international law.

North Sea Continental Shelf
Cases (commons.wikimedia.org)
Questions before the Court (as relevant to this
post):
Is Germany 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?
The Court’s Decision:
The use of the equidistance method had not
crystallised into customary law and the method
was not obligatory for the delimitation of the areas
in the North Sea related to the present
proceedings.
Relevant Findings of the Court:
1. Nature of the treaty obligation: Is the 1958
Geneva Convention, and in particular Article 6,
binding on Germany?
1. 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).
2. The Court rejected the first 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).
3. Note: The Vienna Convention on the Law of
Treaties of 1969 (VCLT), which came into force in
1980, discusses in more detail treaty obligations of
third States (those States who are not parties to
the treaty). It clearly 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 (Article 35 of the VCLT).
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.
(See the relevant provisions of the Vienna
Convention on the Law of Treaties).
4. 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.
5. 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.
2. Nature of the customary international law
obligation: Is Germany bound by the provisions of
Article 6 of the Geneva Convention in so far as
they reflect customary international law?
6. 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.
7. 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.
(a) What was the customary law status of Article 6
at the time of drafting the Convention?
8. 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. The Court held:
“… 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)
(b) Did the provisions in Article 6 on the
equidistance principle attain the customary law
status after the Convention came into force?
9. The Court then examined whether the rule
contained in Article 6 had become customary
international law after the Convention entered into
force – either due the Convention itself (i.e., if
enough States had ratified the Convention in a
manner so as to fulfil the criteria specified below),
or because of subsequent State practice (i.e. even if
an adequate number of States had not ratified the
Convention, one could find sufficient State practice
to meet the criteria below). The Court held that
Article 6 of the Convention had not attained a
customary law status. (Compare the 1958 Geneva
Convention with the four Geneva Conventions on
1949 relating to international humanitarian law in
terms of the latter’s authority as a pronouncement
of customary international law).
10. 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); 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
11. 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
12. The Court held 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.
It held that:
“Although the passage of only a short period of
time (in this case, 3 – 5 years) 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.”
Opinio juris
13. Opinio juris is reflected in acts of States
(Nicaragua Case) or in omissions (Lotus case), in so
far as those acts or omissions were done following
a belief that the said State is obligated by law to act
or refrain from acting in a particular way. (For more
on opinio juris click here).
14. 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.” (Para 77).

15.  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.

BARCELONA TRACTION, LIGHT AND POWER
COMPANYCASE
In 1958, the Belgian Government filed with the
International Court of Justice an Application against
the Spanish Govt. seeing reparation for damage
allegedly caused to the Barcelona Traction, Light
and Power Company Limited on account of the
Spanish State. This was after a financial maneuver
led by Juan March was done to take over the
society, the Court of Spain declared Barcelona
Traction company as bankrupt.
A first round of diplomatic negotiations started
involving a few governments, such as Belgium,
Canada, the United Kingdom, and the United States
of America. As it was a society ruled by Canadian law,
Canada proposed to settle the matter with arbitration
which the Spanish government refused but agreed to
form a committee of experts to study the dispute.
Because the diplomatic negotiations were
unsuccessful, the Belgian government filed a first
request before the International Court of Justice on
September 23, 1958, which was in 1961 interrupted
as new negotiations took place. Understanding that
these negotiations would go nowhere, Belgium filed a
new request before the International Court of Justice
on June 19, 1962.
Regarding the jurisdiction of the Court, Belgium and
Spain are both parties to the Statute of the Court
meaning that the Court is qualified and has jurisdiction
to hear and to resolve the dispute, in which Belgium is
using its diplomatic protection for the benefit of its
foreign nationals and supports that Spain broke the
international law rules concerning the way foreigners
are treated. In 1963, Spain raised four preliminary
objections to the Belgian complaint. In a judgement of
July 24, 1964, the Court rejected the first two
preliminary objections and joined the second two
together. In the decision of February 5, 1970, the
main question revolved around the thematic of
diplomatic protection: does Belgium have the right to
use its diplomatic protection for the Belgian
shareholders of a Canadian company and therefore
stand before the International Court of Justice or not?
One of the main benefit of this judgement is the
recognition of the concept “erga omnes”. It’s a Latin
locution which means “towards all” or “towards
everyone”. For the legal domain, it means that a
judicial decision is binding towards everyone, rights
and obligations are owed towards all. These norms
are imperative. Maurizio Ragazzi explained in his
book, The Concept of International Obligations Erga
Omnes, that “In the Barcelona Traction case, the
International Court of Justice identified a category of
international obligations called erga omnes, namely
obligations owed by states to the international
community as a whole, intended to protect and
promote the basic values and common interests of
all”.
The judgement of 1970 is a fundamental one in the
way that it expressed this notion of erga omnes that is
now considered as one of the pillar of the international
law. It expanded this notion in the international
community. The notion of erga omnes is associated
with the notion of jus cogens which corresponds to a
fundamental principle of international, accepted by the
international community, considered as universal and
superior to which no derogation can be granted. The
notion of jus cogens was established by the Vienna
Convention on the Law of Treaties of 1969.
The case Barcelona Traction, Light and Power
Limited Company is of the greatest importance and
value in the field of International Law, and more
particularly for diplomatic protection and the
promotion of the concept of erga omnes norms and
rights. Jean Charpentier explained in his analysis of
the case, the relations between the states are rigid
which does not facilitate the flexibility at the base of
multinational companies. He then explained that the
only solution would be to ask the State to which they
invest a right of direct access to ad hoc arbitral
bodies.
The Court would here observe that, within the limits
prescribed by international law, a State may exercise
diplomatic protection by whatever means and to
whatever extent it thinks fit, for it is its own rightthat
the State is asserting. Should the natural or legal
persons on whos behalf it is acting consider that their
rights are not adequately protected they have no
remedy in international law. Hence the Belgian Gov