Analysis of North Sea Continental Shelf Case (Germany vs. Denmark and Netherlands)

FACTS

The disputes arose involving the delimitation of the continental shelf areas in the North Sea between Germany, Denmark and Netherlands. All the states have signed to the Geneva Convention on the Continental Shelf, whereas Denmark had the Netherlands were signatory to it. Both the states emphasized the delimitation according to Article 6 of the Geneva Convention by following the equidistant principle as it was a mandatory rule in the delimitation of the continental shelf and a rule of customary international law that was binding on Germany.

Germany resented to the same, as it has a bigger coastline and therefore emphasized on delimitation by following the equitable principle which says that as the natural elongation of Germany is more, they should get more area. The jurisdiction of ICJ was invoked to decide upon the applicable principles. However the parties had already agreed to delimit the continental shelf as between their countries, by agreement.

ISSUE

1. Whether Germany was liable to follow Article 6 of the Geneva Convention on the Continental Shelf, 1958?

2. Whether the treaty had crystallized into customary law and therefore binding upon Germany?

RULE

The following legislation and principles have been discussed:

1. Article 6 of Geneva Convention on the Continental Shelf, 1958. It lays down that in case of absence of any agreement. As to the division of continental shelf adjacent to the territories of two adjacent States. The boundary shall be determine by application of the equidistance principle.
2. Equidistance Principle. It is a legal concept that a nation’s maritime boundaries should conform to a median line. That is equidistant from the shores of neighboring nations.
3. Rule of Reservation. It allows the states to be a party to a treaty while excluding the legal effect of that specific provision. It may not be in consonance with its domestic laws. Also it has been define in the Vienna Convention on the Law of Treaties, Article 2 Sec. 1(d).
4. Equitable Principle: It mentions that whatever the legal reasoning of a court of justice. Its decisions must by definition be just, and therefore in that sense equitable. In the delimitation of the relevant continental shelf. It should be govern by the principle that each coastal state is entitle to a just and equitable share.
5. Rule of third-party obligation. Article 35 of VCLT, 1969 mentions that when parties to a treaty intend a provision to be. An obligation may fall upon the third party to follow the same, if it expressly consents to it in writing.

APPLICATION

Issue 1: Article 6 of the Geneva Convention discuss that unless the parties had already agreed on a method for delimitation. The equidistance method would apply. While Netherlands and Denmark had ratified the Convention, Germany had only signed, but not ratified it.

Netherlands and Denmark argued that Germany by being a signatory to the treaty has show; its intention to be bound by it and therefore are liable to follow it. The ICJ however discarded this argument by mentioning that; only a very consistent conduct of the state would let the court assume that Germany is bound by the treaty. The court also mentioned the rule of reservation. It quoted that even if Germany would have ratified the treaty in the future. It would have the right to reserve Article 6, and therefore could never have been bound by it.

Netherlands and Denmark then argue that Germany is found to follow Article 6. As a third party obligation falls upon it to do so. Both the countries being parties to the treaty. An obligation falls on Germany as a third party to the issue to follow the treaty. ICJ discarded this argument by mentioning that Article 35 of VCLT has laid down that; such third party obligation is only operative when it is expressly consentend to in writing. However Germany did not do any of those.

Issue 2: The court had observe that the convention was not customary law at the time of drafting. Because of two main reasons i.e. the drafters of the convention were hesitant for the inclusion of Article 6. And reservation to the same was also permissible. This would imply that unilateral exclusion could be exercised by the states; which 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.

The court also noted that even after the convention came into force. It did not acquire the status of customary international law. The court propounded that a treaty to be crystallized into custom should have a norm creating character. Further the treaty had not been ratified by an overwhelming majority of the state, therefore, lacking sufficient character of state practice. ICJ identified few characteristics of customary rule like- widespread practice including states whose interests are especially affected, uniformity in practice, and the general recognition of the rule as legally binding upon states i.e. the element of opinio juris.

The Court concluded that even if there were some State practices in favor of the equidistance principle, the Court could not deduct the necessary opinio juris. It quoted that the habitual character of the act does not suffice the need of customary rule as there are many international acts that are performed only out of courtesy, convenience, or tradition. 

The court in this case also mentioned that passage of only a short period of time should not be considered as a bar to the formation of customary international law.  

ANALYSIS

The case has been of fundamental importance as the court enunciated for the first time the Court’s concept of equity in international law. However it must be mentioned that the Court’s departure from the equidistance/special circumstances rule created a certain amount of legal uncertainty and unpredictability in the law of maritime delimitation. Further, the holding did not prescribe any specific remedy, and therefore the case does not significantly aid in any future decisions (baring the observations made on the nature of customary rule), other than for the purpose of denying the equidistance principle legal weight.

The court observed that the hesitation of the drafters of the convention was evidence that at the time of drafting the convention, they did not intend it to become a customary international law. I find the fallacy in this reasoning as the hesitation of the drafters could have been due to various others like political pressure etc. This does not essentially prove that they did not intend the convention to become a rule of customary international law. Further the court for the first time mentioned that the passage of a long period of time is not always essential as a condition precedent for it to become a state practice, and therefore custom.

However some ambiguity can be spotted here as no minimum requirement of passage of time has been provided for. However the same observation can be appreciated for pronouncing a revolutionary doctrine that mirrors a progressive approach to the formation of customary international law by removing the primitive element of slowness in its formation.

CONCLUSION

The International Court of Justice delivered the judgment, by 11 votes to 6. The court concluded that:

1. Germany had not acted in any manner so as to incur obligations contained in Article 6 of the Geneva Convention on the Continental Shelf, 1958. The equidistance–special circumstances rule was not binding on Germany by way of treaty law.
2. 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 the drafting of the Convention.
3. The Court held that the use of the equidistance method is not obligatory for the delimitation of the areas concerned in the present proceedings.