NORTH SEA CONTINENTAL SHELF CASES (Federal Republic of Germany v !enmar"# Federal Republic of Germany v Ne$%erland&' In$erna$ional Cour$ of u&$ice )*+* IC , The jurisprudence of the North Sea Continental Shelf Cases sets out the dual requirement for form forming ing custo customary mary inter internation national al law – Stat State e pract practice ice (objective element) and opinio juris (subjective element) !t elaborated the criteria necessary to establish State practice – widespread and representative participation The case highlighte highl ighted d that the Stat State e pract practice ice of impo importanc rtance e were of those States whose interests were affected by the custom !t also identified the fact that uniform and consistent practice was necessar necessary y to sho show w opi opinio nio jur juris is – a bel belief ief that the practice amounts to a legal obligation The North Sea Continental Self Cases also dispelled the myth that duration of the practice practice (ie the numbe numberr of years) was an essential essential factor in forming customary international law Overview:
The case involved the delimitation of the continental shelf areas in the North Sea between "ermany and #enmar$ and "ermany "erm any and Neth Netherlan erlands ds beyon beyond d the part partial ial bound boundaries aries previously agreed upon by these States The parties reques req uested ted the !C% to dec decide ide th the e pri princi nciples ples and rul rules es of inte in tern rnat atio iona nall la law w th that at ar are e ap appl plic icab able le to th the e ab abov ove e delim del imita itatio tion n The par partie ties s dis disagr agreed eed on the app applic licabl able e principles or rules of delimitation – Netherlands and #enmar$ 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 St ate is mea measur sured) ed) "er "erman many y so sough ughtt to get a dec decisi ision on in favour of the notion that the delimitation of the relevant continent cont inental al shelf is gove governed rned by the principle that each coasta coa stall sta state te is ent entitl itled ed to a jus justt and equitabl equitable e sha share re (hereinaft (her einafter er calle called d just and equit equitable able princ principle& iple&meth method) od) Contrary Cont rary to #enm #enmar$ ar$ and Nethe Netherland rlands' s' "erm "ermany any argu argued ed that the principle of equidistance was neither a mandatory rule rul e in del delimi imitat tation ion of the continen continental tal shelf nor a rul rule e of cust cu stom omar ary y in inte tern rnat atio ional nal la law w th that at wa was s no nott bi bind ndin ing g on "ermany The court was not as$ed to delimit – the parties agreed agree d to delimit the cont continent inental al shelf as betw between een their countries' by agreement' after the determination of the !C% on the applicable principles FACTSDenmark, the Netherlands, and Germany all had a dispute over the boundaries of a shared continental shelf. Denmark and the Netherlands both argued that the dispute should be resolved resolved according according to principles of Article Article 6 of the Geneva Geneva Convention of 1!" on the Continental #helf, $hich provided that in the absence of agreement or special circumstances, a boundary line should be determined by application of the %principle of e&uidistance.' Germany $as not a party to this Convention, but Denmark and the Netherlands argued that the principle of e&uidistance still applied because it $as part of general general internatio international nal la$, la$, and particula particularly rly customary customary international la$.
.ue&$ion& before $%e Cour$ (as Cour$ (as relevant to this post)* +s Germ German any y unde underr a lega legall obli obliga gati tion on to e&uidistancespecial e&uidistancespecial circumstances principle, Article 6 of the Geneva Convention, either as inte intern rnat atio iona nall la$ la$ rule rule or on the the basi basis s of Convention-
acce accept pt the the contained in a customary the the Gene Geneva va
T%e Cour$/& !eci&ionhe use of the e&uidistance method had not crystallised into customary la$ and $as is not obligatory for the delimitation of the the area areas s in the the Nort North h #ea #ea rela relate ted d to the the pres present ent proceedings. Relevan$ Findin0& of $%e Cour$Na$ure Na$ure of $%e $rea$y $rea$y obli0a obli0a$io $ionn- I& $%e )*12 )*12 Geneva Geneva Conven Conven$io $ion3 n3 and in par$ic par$icul ular ar Ar$icle r$icle +3 bindin bindin0 0 on Germany4 1. Article 6 of the Geneva Convention on the Continental #helf states that unless the parties have agreed on a method for delimitation or unless special circumstances e/ist, the e&uidistance method $ould apply (see Article 6). Germany has signed but not ratified the Geneva Convention, $hile Netherlan Netherlands ds and Denmark Denmark are parties parties to the Convention. Convention. he latter t$o #tates argue that $hile Germany is not a party to the Convention (not having ratified it), she is still bound by Article 6 of the the Convention because* because* %0(1) by conduct, by public statements statements and proclamations, proclamations, and in other $ays, the epublic has unilaterally assumed the oblig obligat atio ions ns of the the Conv Conven enti tion on22 or has has mani manife fest sted ed its its acceptance of the conventional regime2 or has recogni3ed it as bein being g gene genera rally lly appl applic icab able le to the the deli delimi mita tati tion on of continental shelf areas0 (4) the 5ederal epublic had held itself out as so assuming, accepting accepting or recogni3ing, recogni3ing, in such a manner manner as to cause other #tates, and in particular Denmark and the Netherlands, to rely on the attitude thus taken up' (the latter is called the principle of estoppel). 4. he Court reected the first argument. +t stated that only a 7very definite very consistent course of conduct on the part of a #tate8 #tate8 $ould allo$ the court to presume that a #tate #tate had someho$ become bound by a treaty (by a means other than in a formal manner* i.e. ratification) $hen the #tate $as 7at all times times fully fully able able and entitled entitled to08 to08 accept accept the treaty treaty commit commitmen ments ts in a formal formal manner manner.. he Court Court held held that that Germany had not unilaterally assumed obligations under the Convention. he court also took notice of the fact that even if Germany ratified the treaty, she had the option of entering into a reservation on Article 6 follo$ing $hich that particular article $ould no longer be applicable to Germany (i.e. even if one $ere to assume that Germany had intended to become a party to the Convention, it does not presuppose that it $ould have also undertaken those obligations contained in Article 6). 9. N:* he ;ienna Convention on the
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provision of a treaty only if (1) the parties to the treaty intend the provision to create this obligation for the third #tates2 and (4) the third #tate e/pressly accepts that obligation in $riting (A. 9! of the ;C<). he ;C< $as not in force $hen the +C> deliberated on this case. ?o$ever, as seen above, the +C>8s position $as consistent the ;C<. (#ee the relevant provisions of the ;ienna Convention on the
not figure among those e/cluded from the faculty of reservation under Article 14, $ere not regarded as declaratory of previously e/isting or emergent rules of la$ (see para 6! for a counter argument and the court8s careful differentiation)0' !id $%e provi&ion& in Ar$icle + on $%e e7uidi&$ance principle a$$ain $%e cu&$omary la5 &$a$u& af$er $%e Conven$ion came in$o force4 . he court then e/amined $hether the rule contained in Article 6 had become customary international la$ after the Convention entered into force either due the convention itself (i.e., if enough #tates had ratified the Convention in a manner to fulfil the criteria specified belo$), or because of subse&uent #tate practice (i.e. even if ade&uate number of #tates had not ratified the Convention one could find sufficient #tate practice to meet the criteria belo$). he court held that Article 6 of the Convention had not attained a customary la$ status (compare the 1!" Geneva Convention $ith the four Geneva Conventions on 1@ in the field of international humanitarian la$ in terms of its authority as a pronouncement of customary international la$). 1=. 5or a customary rule to emerge the court held that it needed* (1) very $idespread and representative participation in the convention, including #tates $hose interests $ere specially affected (i.e. generality)2 and (4) virtually uniform practice (i.e. consistent and uniform usage) undertaken in a manner that demonstrates (9) a general recognition of the rule of la$ or legal obligation (i.e. opinio uries). +n the North #ea Continental #helf cases the court held that the passage of a considerable period of time $as unnecessary (i.e. duration) for the formation of a customary la$. 6ide&pread and repre&en$a$ive par$icipa$ion 11. he court held that the first criteria $as not met. he number of ratifications and accessions to the convention (9 #tates) $ere not ade&uately representative (including of coastal #tates i.e. those #tates $hose rights are affected) or $idespread. !ura$ion 14. he court held that duration taken for the customary la$ rule to emerge is not as important as $idespread and representative participation, uniform usage and the e/istence of an opinio uris. %Although the passage of only a short period of time (in this case, 9 ! years) is not necessarily, or of itself, a bar to the formation of a ne$ rule of customary international la$ on the basis of $hat $as originally a purely conventional rule, an indispensable re&uirement $ould be that $ithin the period in &uestion, short though it might be, #tate practice, including that of #tates $hose interests are specially affected, should have been both e/tensive and virtually uniform in the sense of the provision invoked and should moreover have occurred in such a $ay as to sho$ a general recognition that a rule of la$ or legal obligation is involved (te/t in brackets added).' pinio uris
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19. pinio juris is reflected in acts of #tates (Nicaragua Case) or in omissions ( . he follo$ing e/plains the concept of opinio juris and the difference bet$een customs (i.e. habits) and customary la$* Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a $ay, as to be evidence of a belief that this practice is rendered obligatory by the e/istence of a rule of la$ re&uiring it. he need for such a belief, i.e, the e/istence of a subective element, is implicit in the very notion of the opinio uris sive necessitatis. he #tates concerned must therefore feel that they are conforming to $hat amounts to a legal obligation. he fre&uency, or even habitual character of the acts is not in itself enough. here are many international acts, e.g., in the field of ceremonial and protocol, $hich are performed almost invariably, but $hich are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of le gal duty. 1!. he court concluded that the e&uidistance principle $as not binding on Germany by $ay of treaty or customary international la$ because, in the case of the latter, the principle had not attained a customary international la$ 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 e&uidistance method is not obligatory for the delimitation of the areas concerned in the present proceedings.
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