(International Court of Justice Contentious Case) - 

The North Sea

Continental Shelf Cases (Germany/Denmark; Germany/Netherlands)
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. 

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. 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
proportionality to the length of its North Sea 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.

Issue. 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?

Held. 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?

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?

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.

3. Widespread and representative participation.

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.

4. Duration.
 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.”.

5. Opinio juris.

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.

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.