Name of the case: THE NORTH SEA CONTINENTAL SHELF CASE, 1969
Parties to the suit: FEDERAL REPUBLIC OF GERMANY v DENMARK AND NETHERLANDS
Facts of the case:
- Initially both Denmark and Netherlands submitted an individual dispute with Germany to the ICJ (international court of justice) involving claims to the Continental shelf. These two claims were joined by the ICJ and were decided as one case.
- Denmark and Netherlands argued that the method of Equidistance should be implemented. This is that each state claims all areas that are closer to itself than any other state. They claimed that Geneva Convention supported this method. Moreover, it was alleged that the rule of equidistance is an a priori (Primary Rule) rule, rule of customary international law and a general rule of conventional practicality.
- Germany, who had not ratified the Geneva Convention, claimed that the rule of equidistance was unfair. The state also argued for an apportionment of the shelf that was proportional to the size of each states adjacent land.
- Is the Geneva Convention is binding on a state that has not ratified it?
- Is the rule of equidistance international law?
THE GENEVA CONVENTION ON THE CONTINENTAL SHELF 1958
Article 6 of the convention-
1. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.
2. Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.
3. In delimiting the boundaries of the continental shelf, any lines which are drawn in accordance with the principles set out in paragraphs 1 and 2 of this article should be defined with reference to charts and geographical features as they exist at a particular date, and reference should be made to fixed permanent identifiable points on the land.
MOREOVER GERMANY CONTENTED THAT,
- the correct rule was one according to which each of the States concerned should have a “just and equitable share” of the available continental shelf, in proportion to the length of its sea-frontage.
- As the coast of Germany is concave it would not be equitable for the delimitation of the shelf to be done by the rule of equidistance and equity alone is a big aspect in international law.
THE JUDGEMENT OF THE NORTH SEA CONTINENTAL SHELF CASE:
- The Court found that the Geneva Convention is not binding on Germany, as it did not ratify it. While the Geneva Convention does call for the rule of equidistance, the Court found that the Geneva Convention was not binding upon Germany.
- The court gave the conditions for a customary rule to emerge as an international law:
- The objective element or state practice.
- Very widespread and representative participation in the convention, including states whose interests were specifically affected.
- Virtually uniform practice undertaken in manner that demonstrates a general recognition of the rule of law (i.e. opinion juries).
- Upon inspection of the language of both the Geneva Convention equidistance was found to be a last resort rather than an a priori rule. Also looking to these sources, the Court rejected claims which included equidistance in customary international law. Theses texts which originally included the rule of equidistance only did so for secondary purposes, and the utilization of it was insufficient to prove it to be either customary international law, or a general law of practicality.
- The Court rejected Germany’s claim of proportional apportionment because doing so would intrude upon the natural claims due to States based on natural prolongations of land. Also, the Court’s role was to outline a mechanism of delimitation only. The Court found, therefore, that the two parties must draw up an agreement taking both the maximization of area and proportionality into account. These were to be based upon “equitable principles.”