Public International Law, Case Analysis

Assignment II

Case Analysis of North Sea Continental Shelf

Federal Republic of Germany v. Denmark

(Clubbed With)

Federal Republic of Germany v. Netherlands

Citation: North Sea Continental Shelf ,

Judgement, I.C.J. Reports 1969, p. 3.

SUBMITTED TO:

Sneha Priya Yanappa

Visiting Faculty.
NMIMS(SOL), Bangalore

SUBMITTED BY:

Syamala Yashwanth Reddy

BBA LLB, 81021219030

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Facts:

This case is an amalgamation of two cases arising between The Federal

Republic of Germany, Netherland and Denmark. This dispute was submitted by
the parties to lay down the procedure to be adopted in delimitation of
continental shelf between Germany and other two states, and the judgement was
delivered in 1969.The majority opinion was given by 11 judges and 6 judges
dissented.

It was Netherland and Denmark’s contention that delimitation must be in

accordance with the equidistant principal, enshrined under Article 6 of the 1958
Geneva Convention on the Continental Shelf, to which both the states were
parties.

On the other hand, Germany had signed the convention but hadn’t ratified it. It
was their contention that they are not bound by the equidistant principal in
apportioning the continental shelf, rather they were advocating the just and
equitable share method.

Issues:

1. Whether the Equidistant principal is binding on Germany in delimiting

the continental shelf under International customary law.

2. Whether Germany is bound by the Geneva Convention on the Continental

Shelf.

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3. What are the principles based on which the parties shall delimit the North
Sea Continental Shelf?

Rules/Law Applicable:

1. Geneva Convention on the Continental Shelf, 1958

2. Customary International Law (State Practice and Opinio Juris)
3. Treaty law
4. Principle of equidistance, and Principle of Just and Equitable Share

Analysis:

The main reason why Germany had a problem with adopting the Equidistant
principle was that because the shore of Germany facing the North Sea was
concave in shape, due to this for the purpose of delimiting the boundaries of the
shore would have to be pulled inward towards the concavity, this will create a
relatively bad outcome for Germany as the area of continental shelf would be
smaller.

This constituted an unreasonable proposition for Germany, that’s why they were
persuading the court to adopt the Principle of Just and Equitable share which
will calculate the delimitations based on extent of coastline or sea-frontage
rather than, mere equidistance from boundaries of two opposite states across the
sea. This principle wasn’t acceptable to Kingdoms of Netherland and Denmark,
as they would be getting a smaller piece of the pie, had this method been
adopted for the purpose of delimiting.

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 Public International Law, Case Analysis

It was contended by the Federal Republic of Germany that, since it hasn’t

ratified the Geneva Convention, it will not be binding on them, also that the
principle of equidistance hasn’t attained the status of customary international
law, that it should mandatorily abide by the principle. The majority of the ICJ,
in the judgment agreed partly with the contentions of Germany. It was held that
the provisions of Geneva Convention on Continental Shelf, 1958 shall not be
mandatorily applicable to Germany.

The ratio behind this is multifold, Firstly, the practices of Germany including
conduct, proclamations and public statements did not amount to an estoppel
with regards to Article 6 of the Geneva Convention on Continental Shelf as
claimed by the Kingdoms of Netherland and Denmark as the evidence wasn’t
strong enough to prove that the state practice of Germany amounted to estoppel.

Secondly, the other contention relying entirely upon state practice to persuade
the court that Germany has unilaterally accepted the provisions under Article 6,
as they haven’t objected to this, when they had the opportunity to do so was also
rejected by the court. The reasoning behind this was, only a very definite and
consistent course of conduct on behalf of a state reflecting in a concrete and real
intent to manifest the acceptance of treaty can justify the court upholding such
contentions. The obvious questions that arises is if Germany truly had the intent
to manifest the acceptance, why haven’t they done so without ratifying the
treaty. Also, another reasoning that completely shatters this proposition is that,
Germany could have made reservations to Article 6.

This concluded that none of the actions made by Germany made the provisions
of the Geneva Convention binding on it by way of treaty law.

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Another contention put forward by the Kingdoms of Netherland and Denmark

was that the principle of equidistance under Article 6 has attained the status of
customary international law.

This was refuted by Germany and accepted by the court. The majority opined
that at the time of drafting the Article 6, a reservation to this provision was
made permissible, this was enough to prove that the principle of equidistance
hasn’t attained the customary international law status.

The other consideration made by the bench was to see if the convention has
attained customary international law status, after the treaty came into force. The
answer to this was similarly found to be in negative, the bench opined that in
order to attain the status of customary international law like the 4 Geneva
Conventions related to humanitarian treatment in war, it required wider
acceptance by states, more predominantly by the effected states like countries
with a coast in this case, general recognition of the rule or principle (Opinio
Juris) all of these were found to be in lacking after due consideration was paid
to the issue by the judges.

The court has also turned down the request of Germany to order delimitations
based on a just and equitable share method. The court held that, simply using
the coastline to calculate the delimitations would hamper the interests of those,
who The Court rejected Germany’s claim of because doing so would intrude
upon the natural claims of states based on natural prolongations of land, as this
is an inherent right of those states.

The court has laid down the Equitable Principle’s, which must be taken into
consideration while delimiting the north sea continental shelf, these include the
element of a reasonable degree of proportionality, and taking account of all the

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relevant circumstances, in such a way as 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.
Conclusion:

The North Sea Continental Shelf case is one of the landmark judgments
delivered by the International Court of Justice, it not only resolved the dispute
between Germany and Kingdoms of Netherland and Denmark, but the operative
parts of the judgement also threw light on some very important aspects of
international law, i.e., the sources of international law, what constitutes
customary international law.

The judgment spoke about the necessary factors a general principle of

international law or treaty need to satisfy in order to attain the status of
customary international law, there must be sufficient State Practice and Opinio
Juris and they must include:

a. Widespread and Representative Participation: in order to ascertain the

status of customary international law to any principle or treaty, there must
be evidence that it is being followed or adopted by most of the nation
states and also it must be especially adopted by them whose rights would
effect the most due to the principle or treaty (as we have seen in the
Article 6 example, the principle of equidistant must be adopted by most
of the costal nations as it would affect them the most).

b. Virtually Uniform practice: although this hasn’t been discussed in the

judgment, it is an essential factor for a principle or treaty to qualify as
customary international law.

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c. General recognition of the rule of law or legal obligation: Opinio juris

sive necessitates is the second obligation a principle or treaty needs to
fulfil to obtain the status of international customary law. This means that
a state action or inaction is usually adhered to, because the states feel
legal obliged to do so.

The judgment made state practice and opinion juris, prerequisites for any
principle or treaty attaining the status of customary international, this is also
consistent with the Article 38 (1) of the Statute of the ICJ.

The court has reviewed 15 instances of delimitation but has concluded that
despite the principle of equidistance being followed in quite a few of those
cases, it does not attain the status of opinion juris, as there isn’t any evidence of
a belief that the principle of equidistance is a legal obligation the state must
follow.

Apart from these, the judgement also delved into the duration of a custom, it
held that the notion of being followed from time immemorial is not an essential
to be constituted as customary international law, this was laid down because of
the difference between customs and customary international law, every custom
may not necessarily constitute a customary international law. For example, it is
customary 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.

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This case had a lasting impact on international law, as it has laid down some
important considerations as to what constitutes customary international law, and
also laid down the frequency of practice is immaterial for customary
international law.

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