Authored By: Eman Fatima
Punjab University Law College, Lahore
Full Case Name:
North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands)
Court:
International Court of Justice (ICJ), The Hague
General List Numbers:
Nos 51 and 52
Date of Decision:
20 February 1969
Official Citation:
North Sea Continental Shelf, Judgment, ICJ Reports 1969, p 3
Subject Matter:
Continental shelf delimitation; equidistance principle; customary international law; State practice; opinio juris; treaty law; equitable principles; natural prolongation.
Bench Composition:
President José Luis Bustamante y Rivero; Vice-President Vladimir Koretsky; Judges Sir Gerald Fitzmaurice, Kōtarō Tanaka, Philip C Jessup, Gaetano Morelli, Sir Muhammad Zafrulla Khan, Luis Padilla Nervo, Isaac Forster, André Gros, Fouad Ammoun, César Bengzon, Sture Petrén, Manfred Lachs and Onyeama. Judges ad hoc Hermann Mosler and Max Sørensen also participated. The official record contains separate opinions and dissenting opinions from members of the Court.¹
Decision:
The Court decided the cases by a vote of 11 to 6. It dismissed the claim that Germany had a legal obligation under Article 6 of the 1958 Geneva Convention on the Continental Shelf to apply the equidistance method of delimitation. The Court also held that the equidistance rule had not turned into binding customary international law between the parties. The Court ordered the parties to negotiate the delimitation of their boundaries in accordance with equitable principles and relevant geographical circumstances.²
1. INTRODUCTION
The North Sea Continental Shelf Cases are among the International Court of Justice’s most important rulings in the field of Public International Law. Although at first sight, the dispute appears to be mainly about geography: Germany, Denmark and the Netherlands disagreed about where parts of their continental shelf boundaries in the North Sea should be drawn. However, the case also gave rise to a number of broader questions concerning the creation of international law and how States become legally bound by international rules.
The key issue was the equidistance principle. Simply put, the procedure consists in drawing a boundary so that every point on it is at the same distance from the relevant points on the coastlines of the two States in question. Denmark and the Netherlands maintained that this should be the correct legal method for determining the boundary between their continental shelf and that of Germany. Germany, on the other hand, objected, saying that because of the shape of its coastline, a strict application of the equidistance approach would result in it being left with an unfairly small area of continental shelf.
The dispute thus gave rise to a significant legal question, namely whether Germany could be obliged to adhere to a rule found in a treaty that it had not ratified; and if not, could the same rule still be binding on Germany since it had come to form part of customary international law?
The way the Court responded to these questions turned the case into a landmark authority; it held that Germany had not been bound by Article 6 of the 1958 Geneva Convention on the Continental Shelf and that the equidistance principle had not, at that time, evolved into a rule of customary international law applicable to Germany.³
Rather than asking the parties to apply a single definite mathematical formula, the Court ordered them to negotiate their boundaries according to equitable principles and taking into account the relevant circumstances. It also stressed the relationship between the continental shelf and the coastal State’s land territory, as expressed by the concept of the natural prolongation of that territory under the sea.⁴
The study of customary international law is particularly concerned with this case; the Court’s examination of state practice and opinio juris still constitutes one of the most frequently quoted judicial explanations of the way in which customary rules are formed.
2. FACTS OF THE CASE
The disagreement was caused by the geographical situation of Germany, Denmark and the Netherlands around the North Sea, since all three countries had interests in the continental shelf, a region which at that time was becoming more important due to the possibility of exploiting natural resources like oil and gas.
The maritime boundaries between the three States had already been settled in certain areas by means of agreements; thus, Germany and the Netherlands reached a partial agreement on their boundary in 1964 and Germany and Denmark did so in 1965. However, these agreements did not cover all the relevant areas and therefore further delimitation was still required.⁵
Instead of trying to settle the remaining dispute in a political way, the States decided to submit the legal issues to the International Court of Justice. In February 1967 Germany entered into separate Special Agreements with Denmark and the Netherlands. The parties requested the Court to determine the principles and rules of international law which applied to the delimitation of the remaining continental shelf areas.⁶
In 1968 the Court combined the two cases since Denmark and the Netherlands were seen as having the same interest with regard to the cases.⁷
Germany’s geographical situation formed the basis of its argument since its coastline had a concave shape and, if lines of equidistance were drawn out from the relevant coastal points, they would converge and thus reduce the area of the continental shelf available to Germany; Germany referred to this as the cut-off effect.
Germany therefore maintained that the strict application of the equidistance principle would lead to an unjust outcome. It asked the Court to acknowledge that the drawing of the boundary should consider the real geographical situation rather than merely applying a mathematical formula.
Denmark and the Netherlands adopted the contrary stance, placing particular emphasis on Article 6 of the 1958 Geneva Convention on the Continental Shelf, which established the principle of equidistance, provided that an agreement or special circumstances existed.
The problem was that although Germany had signed the Convention, it had not ratified it; the Court was therefore obliged to decide whether or not Article 6 could apply to Germany.
3. LEGAL ISSUES
The dispute brought up several important legal questions.
3.1 Was Germany obliged by Article 6 of the 1958 Convention?
The first issue was whether Germany could be made to adhere to the equidistance rule mentioned in Article 6 even though it had not joined the Convention.
3.2 Did equidistance become part of customary international law?
The other and more general question was whether the principle of equidistance had arisen independently of the Convention and had thus become a rule of customary international law.
3.3 Did Germany’s actions constitute an act of acceptance?
Denmark and the Netherlands relied on Germany’s behaviour, including its signing of the Convention and other actions, in order to claim that Germany should not be allowed to reject the rule.
3.4 What principles ought to be the basis of the delimitation?
If the equidistance method had not been legally required, the Court would have had to decide on the principles which should direct the parties in setting up the other boundaries.
3.5 What conditions are necessary in order for a treaty rule to become customary law?
The Court also had to examine the relationship between the provisions of a treaty and customary international law, especially the part played by state practice and opinio juris.
4. ARGUMENTS PRESENTED BY THE PARTIES
4.1 Arguments of Denmark and the Netherlands:
Denmark and the Netherlands argued that the equidistance-special circumstances rule should govern the delimitation. Their position relied mainly on Article 6 of the 1958 Geneva Convention.
They contended that this article represented a well-established legal approach to delimiting the continental shelf and should be used unless special circumstances required a different outcome.
They also maintained that equidistance had become customary international law. They believed that the growing number of States using this method showed a general acceptance of the principle. The two States also pointed to Germany’s actions.
Germany had signed the 1958 Convention, and Denmark and the Netherlands argued that Germany’s later behavior was important in assessing whether it could object to the use of the rule.
Their main point was that equidistance offered a clear, objective, and legally predictable way to set maritime boundaries.
4.2 Arguments of Germany:
Germany rejected the idea that equidistance was automatically binding. Its argument about the treaty was simple. Germany had not ratified the 1958 Convention, so it asserted that it could not be held bound under treaty law by Article 6.
Germany also challenged the assertion that equidistance had become customary international law. It argued that State practice did not prove that States used equidistance because they felt legally required to do so.
Germany focused heavily on geography. Its coastline was concave, and it argued that applying equidistance mechanically would cause an unfair “cut-off” effect.
Therefore, Germany supported an approach based on fair principles, relevant circumstances, and the natural link between its land and the continental shelf.
5. THE COURT’S REASONING
5.1 Delimitation is not the same as apportionment
One of the first important observations made by the Court in the case at hand was concerning delimitation and apportionment.
Germany presented its arguments in terms of receiving a “just and equitable share”. The Court did not recognize this as the right understanding of the dispute.
The Court believed that the continental shelf was not a common zone which belonged collectively to all the adjacent States. Rights over the continental shelf were linked with the coastal State’s land territory.
Therefore, the Court faced the task of delineating the boundary between the areas belonging to each of the States rather than distributing the total seabed area equally.⁸
This distinction is vital in the matter in question since it altered the character of the dispute. It was not merely “how much of the North Sea shall be assigned to Germany?” The matter in question rather was “which parts of the continental shelf belong to Germany, Denmark and the Netherlands and how can one delimit the overlapping claims?”
6.NATURAL PROLONGATION
The notion of natural prolongation proved important for the Court’s considerations.
The Court understood the continental shelf as the natural prolongation of the coastal State’s land territory into the sea. In its own words, it was the area which constituted the:”natural prolongation of its land territory into and under the sea”.⁹
It means that the continental shelf was not merely something that the State acquired due to the fact that it was located close to the seabed. The entitlement to the continental shelf was rather linked with the State’s territory.
The principle of natural prolongation enabled the Court to explain why the geographical considerations were important. One could not determine the boundary through the application of some mathematical formula without taking into consideration the geographical link between the State and the continental shelf.
This principle became particularly important in view of the peculiarities of Germany’s concave coastline.
7.THE EQUI-DISTANCE PRINCIPLE
The equidistance approach was the crux of the conflict.
Indeed, the Court found equidistance to be a practical method of delimitation. It was fairly straightforward and yielded a precise border line. Nevertheless, the Court found the feasibility not enough for the equidistance principle to become a compulsory rule of international law.
It was particularly noticeable in the North Sea, where the geographical character of the German coastline made equidistance lines converge. Thus, its application would have a rather serious effect on Germany compared to the effect on the other States.
The Court, therefore, rejected the idea that equidistance should automatically be applied in every case, without taking into account the circumstances of the situation.
This was an important legal decision. In essence, the Court declared that a particular way of delimitation should not be a compulsory rule of international law simply because it can be calculated easily.
8.ARTICLE 6 OF THE 1958 CONVENTION
Next, the Court examined the question of whether Germany was bound by Article 6 of the 1958 Geneva Convention.
Though Germany had signed the Convention, it had not ratified it yet. Thus, the Court declared that Germany was not bound by Article 6 under the terms of the contract.
The reasoning behind such a conclusion was consistent with the principle of State consent. Generally speaking, international agreements are binding upon the States because the latter consent to be bound by them according to the treaty procedure.
In this case, however, the Court did not find the signature of the State and its further actions to be equivalent to ratification.
9.CUSTOMARY INTERNATIONAL LAW AND OPINIO JURIS
The most significant aspect of the decision regards customary international law.
Denmark and the Netherlands contended that, while Article 6 may not have obligated Germany due to its being a treaty provision, the equidistance formula had been transformed into a customary international law norm.
The Court disagreed.
It held that mere State practice is not sufficient. Rather, there should be some proof that the States engage in that practice out of their understanding of the duty imposed on them by international law.
The famous passage reads:
“The frequency, or even habitual character of the acts is not in itself enough.”¹⁰
This succinct passage highlights a vital point.
Assume that a large number of States employ equidistance in determining their maritime borders because of its convenience. This would prove practice, but opinio juris may still be lacking.
In order to create customary international law, States should act according to the practice in question due to a feeling of legal duty.
Hence, the Court had to determine if the practice of equidistance and the legal belief connected to it were widespread and strong enough to establish a rule binding Germany.
The judgment thus remains one of the most authoritative precedents as regards custom and opinio juris.
10. CAN A TREATY RULE BECOME CUSTOMARY LAW?
The decision of the Court was not that treaty provisions can never be part of customary international law.
On the contrary, the Court acknowledged that a provision in a treaty may lead to custom provided that the required elements are present.
But the mere incorporation of the provision in a multilateral treaty would not necessarily mean that the rule would become customary law.
There must be substantial proof that States have implemented the rule and considered themselves bound by it.
This becomes necessary for reasons that otherwise, States might find themselves being bound by rules which they have never accepted simply because these rules were included in a very popular treaty.
11. THE ROLE OF EQUITY
Not having endorsed equidistance as a mandatory principle, the Court had to establish what would replace it.
Equitable principles were the answer.
It did not mean that each State could determine what it found equitable on its own. The equitable principle had to operate under the international law framework.
The Court imposed the duty on the parties to delineate their boundaries based on the equitable principles and the relevant circumstances. Various considerations could also be taken into account, such as the general configuration of the coasts, physical and geological characteristics, natural resources, and proportionality.¹¹
Therefore, one can say that the approach chosen by the Court was equity within law rather than fairness replacing law.
Such an approach was quite reasonable because maritime boundaries are very much dependent on geography. While the rule ignoring geography at all could seem quite objective, it would lead to inequitable results.
12. THE COURT’S QUOTATION ON EQUITY
The observation made by the Court regarding the connection between equity and equality is as follows:
“Equity does not necessarily imply equality.”¹²
Such an observation is especially pertinent to the situation in the case at hand.
It did not mean that the Court held that Germany was entitled to more land because equidistance was considered unfair, nor did it hold that all three States were entitled to an equal amount of land.
On the contrary, the Court understood that an equitable outcome required taking into account the differences in geographical conditions of the States.
13. JUDGMENT
The judgment of the International Court of Justice was rendered on 20 February 1969. The majority consisted of 11 to 6.¹³
In essence, the Court decided that the boundaries of the continental shelf were to be set by agreement of the parties according to equitable criteria.
It found that Germany was not obliged to apply Article 6 of the 1958 Geneva Convention on the Continental Shelf.
It also ruled out the contention that the principle of equidistance had already crystallized into customary international law.
The Court insisted on negotiating a solution which would provide for each State area of the continental shelf as the natural extension of its land territory under the sea.
The Court also outlined several considerations to be taken into account when the delimitation was to be performed.¹⁴
Notably, the Court did not actually delineate the boundaries. The Special Agreements had requested it to establish the principles and rules which were to be used by the parties in their delimitation process.
14. RATIO DECIDENDI
The major ratio decidendi of the judgment can be stated in the following terms:
Since Germany had not become a party to the 1958 Geneva Convention containing the equidistance method for delimitation in Article 6 thereof, and since the said method had not become customary international law binding on Germany through an independent development, the continental shelf boundaries were to be delimited on the basis of equity and geographical considerations having regard to the natural prolongation of their respective land territories.
Another important rule that comes out of the case is that of customary international law.
The inclusion of a rule in a treaty agreement does not necessarily mean that the said rule becomes customary international law. There must be satisfactory State practice supported by opinio juris.
This part of the judgment is, in fact, much more significant at present than the actual maritime dispute for the reason that this test has become crucial for identifying customary international law.
15. CRITICAL ANALYSIS
There are several aspects of the ruling which make it persuasive, yet it leaves some challenging issues open.
The most convincing aspect of the ruling relates to the Court’s approach to customary international law. It would be risky to assume that the repetition of certain conduct automatically means the creation of a new rule of law. States often act similarly due to pragmatic or political considerations. Opinio juris, as provided by the Court, is an important distinction between a true legal obligation and normal international practice.
At the same time, the Court’s approach poses some practical problems. It can be rather difficult to ascertain the motivation of the state’s conduct. The governments might not declare explicitly whether their conduct was motivated by the need to fulfill legal obligations or the need for political expediency.
Such opinio juris may be difficult to establish.
The Court’s approach to Germany’s refusal to ratify the Convention is also rather sound. It would be rather hard to justify Germany being legally bound to a particular treaty provision that it did not accept through the appropriate process of ratification. Therefore, the Court’s approach respected the principle of voluntariness of international obligations.
The treatment of equidistance is rather understandable as well. This method provided the certainty that is needed in this case, although certainty is not always equivalent to justice. In this context, it is worth mentioning Germany’s concave coast, which illustrated that a mathematically neutral method can provide unjust outcomes in different geographic cases.
In this respect, the Court was right in analyzing the consequences of applying the equidistance method instead of merely assuming that the formula was satisfactory.
However, the use of equitable principles creates its own issue, the uncertainty.
It becomes quite possible that a boundary must be “equitable”, but the States may disagree on what equity demands. A mathematical formula provides some predictable outcomes, whereas equity requires interpretation.
The Court tried to address this issue by specifying particular factors to be considered: the configuration of the coastlines, physical and geological circumstances and proportionality.
One of these restrictions lies in the historical context of the idea of natural prolongation. International law of the sea has undergone much development since 1969, for example, in the form of the 1982 United Nations Convention on the Law of the Sea. Future international decisions in terms of delimitation were characterized by an increasingly structural approach.
Moreover, the dissenting opinions should be considered as well. It is important to note that the decision made by the Court was not unanimous: six judges of the Court dissented from the majority opinion. The dissenting opinions were expressed by Vice-President Koretsky and Judges Tanaka, Morelli, Lachs and Sørensen.¹⁵
Dissenting opinions prove the controversial nature of the approach used by the majority. Specifically, dissenting judges were more willing to stress the importance of the equidistance rule from the standpoint of international law.
From a critical point of view, such controversy proves the fact that there can still exist some controversy regarding a seemingly straightforward rule of international law even after it is adopted. Different judges can have different interpretations of treaty, State practice, geography and equity.
However, in my opinion, the decision of the majority was more balanced. While the equidistance rule would provide much-needed clarity, it would fail to take into account the unique geography of the North Sea. At the same time, the suggestion of Germany to get an “equitable share” would have been too indefinite.
16.SIGNIFICANCE OF THE CASE
The significance of the North Sea Continental Shelf Cases goes much farther than the case itself.
16.1 Customary International Law
This case is one of the authorities on the development of customary international law. It highlights the significance of both State practice and opinio juris.
16.2 Treaty Law
The ruling reaffirms that a State cannot be considered a contracting party to a treaty that it has not accepted using the appropriate procedures.
16.3 Delimitation of Maritime Zones
In this case, it is seen that equidistance cannot be automatically applied as an all-encompassing rule.
16.4 Equity
The ruling emphasizes the fact that equitable considerations may be used as part of legal reasoning while not allowing courts to exercise unlimited discretion.
16.5 Natural Prolongation
The emphasis on natural prolongation played an important role in the development of continental shelf law.
17. CONCLUSION
North Sea Continental Shelf Cases started out as a dispute over maritime boundaries but have grown to be one of the most significant cases in Public International Law.
Denmark, Germany and the Netherlands had a dispute regarding the delimitation of certain areas of the North Sea continental shelf. While the latter two states agreed to apply the equidistant principle in such delimitation, Germany maintained that due to its geographical position, an exact application of that principle to this case would be unfair.
The International Court of Justice ruled that Article 6 of the 1958 Geneva Convention does not create obligations under international law. Moreover, the Court found that the equidistant method was not a part of the customary international law applicable to Germany.
The Court’s approach to the question of customary international law in this case deserves special attention. According to the Court, mere frequency or habitual nature of state acts is not sufficient; ¹⁶ what counts is whether the acts in question are carried out due to the belief that international law requires such acts to be made.
The distinction between state practices and opinio juris is still at the heart of the academic discourse.
In terms of the maritime dispute, the Court applied a flexible approach. Rather than forcing the parties to calculate everything according to a certain mathematical formula, it encouraged them to reach an agreement based on the principles of equity and geographical situation.
The flexible approach may be criticised for causing uncertainties and affecting the development of the natural prolongation doctrine in the law of the sea. Still, the contribution of the judgment to the international legal system is undeniable.
OSCOLA-STYLE FOOTNOTE(S):
North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) [1969] ICJ Rep 3, 3–4.
ibid 53–54 [101]; International Court of Justice, ‘Summary of the Judgment of 20 February 1969’ (1969) 1.
North Sea Continental Shelf (n 1) 38–43 [71–76].
ibid 53–54 [101].
ibid 5–7 [2–6].
ibid 6–7 [3–5].
North Sea Continental Shelf (Federal Republic of Germany/Denmark), General List No 51, Order of 26 April 1968; International Court of Justice, ‘North Sea Continental Shelf (Federal Republic of Germany/Denmark)’ (ICJ).
North Sea Continental Shelf (n 1) 22 [18].
ibid 53 [101(C)(1)].
ibid 44 [77].
ibid 54 [101(D)].
ibid 49 [91].
International Court of Justice, ‘Summary of the Judgment of 20 February 1969’ (1969) 1.
North Sea Continental Shelf (n 1) 53–54 [101].
International Court of Justice, ‘North Sea Continental Shelf (Federal Republic of Germany/Netherlands): Judgments’ (ICJ).
North Sea Continental Shelf (n 1) 44 [77].
TABLE OF CASES
North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) [1969] ICJ Rep 3.
TABLE OF INTERNATIONAL MATERIALS
Geneva Convention on the Continental Shelf 1958
Special Agreements between the Federal Republic of Germany, Denmark and the Netherlands, 1967
BIBLIOGRAPHY
Primary Source
International Court of Justice, North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) [1969] ICJ Rep 3.
International Court of Justice, North Sea Continental Shelf (Federal Republic of Germany/Denmark), General List No 51.
International Court of Justice, North Sea Continental Shelf (Federal Republic of Germany/Netherlands), General List No 52.
International Court of Justice, ‘Summary of the Judgment of 20 February 1969’ (1969) 1.
Official Separate and Dissenting Opinions
International Court of Justice, North Sea Continental Shelf Cases, Separate Opinion of Judge Jessup.
International Court of Justice, North Sea Continental Shelf Cases, Separate Opinion of President Bustamante y Rivero.
International Court of Justice, North Sea Continental Shelf Cases, Separate Opinion of Judge Padilla Nervo.
International Court of Justice, North Sea Continental Shelf Cases, Separate Opinion of Judge Ammoun.
International Court of Justice, North Sea Continental Shelf Cases, Dissenting Opinion of Vice-President Koretsky.
International Court of Justice, North Sea Continental Shelf Cases, Dissenting Opinion of Judge Tanaka.
International Court of Justice, North Sea Continental Shelf Cases, Dissenting Opinion of Judge Morelli.
International Court of Justice, North Sea Continental Shelf Cases, Dissenting Opinion of Judge Lachs.
International Court of Justice, North Sea Continental Shelf Cases, Dissenting Opinion of Judge Sørensen.
